Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The following message from the Senate has been received:

On 7 December 2023, the House concurred with the Senate's action in dividing the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 and agreed to an amendment incorporating the following provisions of that bill in a separate bill:

The Senate returns those provisions to the House in the form of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023. The Senate inserted a title and enacting words and amended the bill as indicated in Part A of the annexed Schedule and, after ordering the bill be printed, agreed to it with the further amendments in Part B of the annexed Schedule. The Senate requests the concurrence of the House in the amendments in both Part A and Part B of the Schedule.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That the amendments be considered immediately.

Senate's amendments—

PART A

Schedule of the amendments made by the Senate to the provisions of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 that were incorporated in a separate bill

(1) Govt (2) [sheet PU108]

That the following be inserted at the beginning of the separate bill:

A Bill for an Act to amend the law relating to workplace relations, certain independent contractors, unfair contracts, the road transport industry and registered organisations, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

(2) Govt (3) [sheet PU108]

That Part 18 of Schedule 1 to the separate bill be omitted and substituted with the following:

Part 18 — Application and transitional provisions

Fair Work Act 2009

308 In the appropriate position in Schedule 1

Insert:

Part 16 — Main amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

100 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

Division 2 — Amendments made by Part 1 of Schedule 1 to the amending Act

101 Resolving uncertainties and difficulties about interaction between fair work instruments and the definition of casual employee and employee choice

(1) The FWC may make a determination varying a fair work instrument that is a modern award, enterprise agreement or workplace determination that was made before the commencement of this clause:

(a) for an enterprise agreement or workplace determination—on application by an employer, employee or employee organisation covered by the enterprise agreement or workplace determination; or

(b) for a modern award:

(i) by the FWC on its own initiative; or

(ii) on application by an employer organisation or employee organisation entitled to represent the industrial interests of an employer or employee covered by the award.

(2) The FWC may make a determination varying the instrument:

(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and any of the following:

(i) the definition of casual employee in section 15A of the amended Act (including to deal with uncertainty or difficulty arising from the circumstances in which employees are to be employed as casual employees under the agreement);

(ii) the provisions of Division 4A of Part 2-2 of the amended Act; or

(b) to make the instrument operate effectively with that section or those provisions.

(3) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination is made.

(4) If the determination relates to a modern award, the FWC must publish the award as varied as soon as practicable on the FWC's website or by any other means the FWC considers appropriate.

102 Application of amendments

Application of definition of casual employee

(1) Section 15A of the amended Act applies on and after commencement in relation to employment relationships entered into before, on or after commencement.

(2) Despite subclause (1), for the purposes of applying section 15A of the amended Act on and after commencement in relation to employment relationships entered into before commencement:

(a) conduct of an employer and employee that occurred before commencement is to be disregarded for the purposes of applying subsections 15A(2) and (3) in relation to that employee; and

(b) if an employee's contract of employment immediately before commencement included a term of a kind referred to in subsection 15A(4)—that subsection is taken not to apply in relation to the employee for the remainder of the term of that contract.

Continuing casual employees

(3) For the purposes of subclause (1), an employee who was, immediately before commencement, a casual employee of an employer within the meaning of section 15A as in force at that time, is taken to be a casual employee of the employer within the meaning of section 15A of the amended Act on and after commencement.

(4) An employer of an employee referred to in subclause (3) must, despite subsection 125B(2), give the employee a Casual Employment Information Statement within 3 months after commencement.

Application of employee choice and casual conversion provisions

(5) The amendments of Division 4A of Part 2-2 made by the amending Act apply on and after commencement in relation to employment relationships entered into before, on or after commencement.

(6) For the purposes of applying subclause (5) in relation to employment relationships entered into before commencement:

(a) any period of employment as a casual employee that occurred before commencement is to be disregarded for the purposes of paragraphs 66AAB(c) and (d) of the amended Act; and

(b) paragraph 66AAB(d) of the amended Act is taken to include a requirement that in the period referred to in that paragraph the employee has not:

(i) been given a response before commencement by the employer under section 66G refusing a request made by the employee under section 66F; or

(ii) been given a response after commencement by the employer under section 66G refusing a request made by the employee under section 66F (as those sections continue to apply because of subclauses (6A) and (6B)).

(6A) Despite subclause (5), section 66F as in force immediately before commencement continues to apply after commencement in relation to employment relationships entered into before commencement for a period of:

(a) for an employer that is a small business employer—12 months from commencement; or

(b) for an employer that is not a small business employer—6 months from commencement.

(6B) Despite subclause (5), sections 66G to 66J as in force immediately before commencement continue to apply after commencement in relation to:

(a) a request made before commencement by an employee under section 66F for which, immediately before commencement, a response under section 66G or a notice under section 66J had not been given; or

(b) a request made after commencement by an employee under section 66F (as that section continues to apply because of subclause (6A)).

(7) Despite subclause (5), sections 66M and 739 as in force immediately before commencement continue to apply after commencement to:

(a) disputes that arose before commencement relating to the operation of Division 4A of Part 2-2; and

(b) disputes that arise after commencement relating to the operation of sections 66F to 66J (as those sections continue to apply because of subclauses (6A) and (6B)).

Definitions

(8) In this clause:

commencement means the commencement of Part 1 of Schedule 1 to the amending Act.

103 Transitional provision

For the purposes of applying section 66L of this Act during the period beginning when this clause commences and ending when Part 1 of Schedule 1 to the amending Act commences, the reference to "this Division" in that provision is taken to include a reference to that Division as amended by that Part.

Division 3 — Amendments made by Part 4 of Schedule 1 to the amending Act

104 Replacement agreements

(1) Subsections 58(4) and (5), as inserted by the amending Act, apply in relation to single-enterprise agreements made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.

(2) Section 180B and subsection 240A(4), as inserted by the amending Act, apply in relation to single interest employer agreements and supported bargaining agreements whether made before or after the commencement of Part 4 of Schedule 1 to that Act.

(3) Subsections 236(1B) and 238(2), as inserted by the amending Act, apply in relation to applications made after the commencement of Part 4 of Schedule 1 to that Act, whether the single interest employer agreement or supported bargaining agreement was made before or after that commencement.

105 Variation of supported bargaining authorisations

Subsection 245(2), as inserted by the amending Act, applies in relation to enterprise agreements and workplace determinations that come into operation before or after the commencement of Part 4 of Schedule 1 to that Act.

106 Application of better off overall test to replacement agreements

Sections 193 and 193A, as amended by the amending Act, apply in relation to single-enterprise agreements made on or after the commencement of Part 4 of Schedule 1 to that Act, whether the supported bargaining agreement or single interest employer agreement was made before or after that commencement.

Division 4 — Amendments made by Part 5 of Schedule 1 to the amending Act

107 Model terms and enterprise agreements

(1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:

(a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

(c) the FWC approves the agreement.

(2) In deciding, after the commencement of that Part, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard the amendments made by that Part.

108 Model terms and copied State instruments

Despite the amendments made by Part 5 of Schedule 1 to the amending Act, section 768BK, as in force immediately before the commencement of that Part, continues to apply in relation to a model term that is taken, before that commencement, to be a term of a copied State instrument.

109 Disallowance — model terms made before commencement

Section 42 (disallowance) of the Legislation Act 2003 does not apply to a determination made in the exercise of a power under subsection 202(5), 205(3), 737(1) or 768BK(1A) of the amended Act, before the commencement of Part 5 of Schedule 1 to the amending Act, relying on subsection 4(1) of the Acts Interpretation Act 1901.

Note: Subsection 4(1) of the Acts Interpretation Act 1901 provides for the exercise of powers between the passing and commencement of an Act.

Division 5 — Amendments made by Part 5A of Schedule 1 to the amending Act

110 Application of amendments — intractable bargaining workplace determinations

(1) This clause applies to the following provisions:

(a) section 270A of the amended Act;

(b) subsection 274(3) of the amended Act.

(2) The provisions apply in relation to determinations made on or after the commencement of Part 5A of Schedule 1 to the amending Act (including determinations in relation to which the declaration concerned, or the application for the declaration concerned, was made before that commencement).

(3) The provisions also apply in relation to determinations made before that commencement, in the circumstances specified in clause 111.

111 Application of amendments to intractable bargaining workplace determinations made before commencement

(1) This clause applies in relation to an intractable bargaining workplace determination made before the commencement of Part 5A of Schedule 1 to the amending Act (the original determination).

(2) On application by an employer, employee or employee organisation covered by the original determination, the FWC must make a determination (a variation) varying the original determination where required so as to give effect to the provisions to which clause 110 applies.

(3) An application under subclause (2) must be made before the end of the period of 12 months commencing on the day Part 5A of Schedule 1 to the amending Act commences.

(4) The FWC may make a variation despite paragraph 603(3)(c).

(5) Any variation must be made by a Full Bench.

(6) A variation operates from the day specified by the FWC in the variation, which must not be a day before the variation is made.

Division 6 — Amendments made by Part 9 of Schedule 1 to the amending Act

112 Application of amendments

Section 357, as amended by Part 9 of Schedule 1 to the amending Act, applies in relation to representations made on or after the commencement of that Part.

Division 7 — Amendments made by Part 10 of Schedule 1 to the amending Act

113 Application of amendments — right of entry

The amendments of subsection 510(1) made by Part 10 of Schedule 1 to the amending Act apply in relation to each entry permit held by a permit holder whether issued before, on or after the commencement of that Part.

Division 8 — Amendments made by Part 11 of Schedule 1 to the amending Act

114 Penalties for contravention of civil remedy provisions

Changes to amounts of pecuniary penalties and serious contraventions

(1) The amendments of Part 4-1 made by Division 1 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.

(2) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.

Changes relating to underpayments

(3) The amendments of Part 4-1 made by Division 3 of Part 11 of Schedule 1 to the amending Act apply in relation to conduct engaged in after the commencement of that Division.

(4) For the purposes of section 557, conduct engaged in before that commencement cannot constitute the same course of conduct as conduct engaged in after that commencement.

Part 17 — Amendments made by Part 15 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

115 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

commencement means the commencement of item 237 of Part 15 of Schedule 1 to the amending Act.

old Act means this Act as in force immediately before commencement.

Division 2 — Transitional provisions

116 Relationships in existence as at commencement or entered into on or after commencement

(1) Subject to this Schedule, section 15AA of the amended Act applies on and after commencement to the following:

(a) a relationship between an individual and a person entered into before commencement that is in existence as at commencement;

(b) a relationship between an individual and a person entered into on or after commencement.

(2) Despite section 40A, section 7 of the Acts Interpretation Act 1901, as in force from time to time, applies in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

Note: Section 7 of the Acts Interpretation Act 1901 provides for the effect of amendment and repeal of provisions of Acts, including in relation to rights, liabilities, penalties and forfeitures etc. accrued or incurred before the repeal.

117 References to employees etc. in fair work instruments made before commencement

(1) This clause applies to a fair work instrument that:

(a) was made before commencement; and

(b) is in operation on or after commencement.

(2) A reference in the fair work instrument to an employee or an employer is taken, on and after commencement, to include a reference to an employee or an employer, as the case requires, within the meaning of section 15AA of the amended Act.

118 Entitlements determined by reference to length of a period of employment etc.

(1) This clause applies if:

(a) immediately before commencement, an individual was not an employee of a person within the ordinary meaning of that expression; and

(b) because of the operation of section 15AA of the amended Act, on commencement, the individual becomes an employee of the person, within the ordinary meaning of that expression, in respect of that relationship.

(2) For the purposes of determining whether the individual has a right or entitlement under the amended Act or under a fair work instrument in respect of the employment of the individual, being a right or entitlement calculated by reference to:

(a) the individual's length of service (however described) as an employee; or

(b) a minimum period of employment (however described) of the individual;

the nature of the relationship between the individual and the person in respect of a period or periods before commencement is to be ascertained in accordance with the old Act.

119 Old Act applies to proceedings on foot as at commencement

(1) Despite the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act, the old Act continues to apply, on and after commencement, as if that amendment had not been made, in relation to the following:

(a) an application made, or proceedings on foot, as at commencement, other than an application or proceedings prescribed by the regulations;

(b) an application for review of, or an appeal relating to, an application or proceedings referred to in paragraph (a) (whether the application for review was made, or the appeal proceedings were brought, before, on or after commencement).

(2) For the purposes of paragraph (1)(a), an application or proceedings are on foot until all rights of review and appeal in relation to the application or proceedings have expired or have been exhausted.

120 FWC power to deal with uncertainties or difficulties arising from the operation of section 15AA of the amended Act

(1) The FWC may make a determination varying a fair work instrument in order to resolve an uncertainty or difficulty relating to the operation or effect of the fair work instrument, being an uncertainty or difficulty arising as a result of, or in connection with, the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

(2) The FWC may make a determination under subclause (1) varying a modern award:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees covered by the modern award; or

(d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

(3) The FWC may make a determination under subclause (1) varying an enterprise agreement or a workplace determination:

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the enterprise agreement or workplace determination;

(ii) an employee covered by the enterprise agreement or workplace determination;

(iii) an employee organisation covered by the enterprise agreement or workplace determination.

(4) The FWC may make a determination under subclause (1) varying an FWC order:

(a) on its own initiative; or

(b) on application:

(i) by a person affected by the order; or

(ii) if the FWC order is of a kind prescribed by the regulations—by a person prescribed by the regulations in relation to that kind of order.

(5) A variation of a fair work instrument under this clause operates from the day specified in the determination, which may be a day before the determination was made.

(6) The regulations may provide as follows:

(a) that this clause applies, or does not apply, to a specified fair work instrument or a specified class of fair work instrument;

(b) that this clause applies, or does not apply, to a specified uncertainty or difficulty, or a specified class of uncertainty or difficulty.

Division 3 — Regulations about transitional matters

121 General power for regulations to deal with transitional etc. matters

(1) The regulations may make provisions of a transitional, application or saving nature in relation to the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

(2) The regulations may make provisions of a transitional, application or saving nature in relation to the following:

(a) a person becoming an employer because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act;

(b) an individual becoming an employee because of the amendment made by item 237 of Part 15 of Schedule 1 to the amending Act.

122 Other general provisions about regulations

(1) This clause applies to regulations made for the purposes of this Part.

(2) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to the regulations.

(3) If:

(a) regulations are expressed to commence from a date (the registration date) before the regulations are registered under the Legislation Act 2003; and

(b) a person engaged in conduct before the registration date; and

(c) but for the retrospective effect of the regulations, the conduct would not have contravened a provision of this Act;

then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened a provision of this Act.

Part 18 — Amendments made by Part 16 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023

Division 1 — Definitions

123 Definitions

In this Part:

amended Act means this Act as amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

amending Act means the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023.

commencement means the commencement of item 238 of Part 16 of Schedule 1 to the amending Act.

old Act means this Act as in force immediately before commencement.

Division 2 — Transitional provisions

124 Unfair deactivation and unfair termination

(1) Part 3A-3 (unfair deactivation or unfair termination of regulated workers) applies to a deactivation or termination that occurs after commencement.

(2) For the purposes of determining under paragraph 536LD(c) whether an employee-like worker has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted.

(3) For the purposes of determining under paragraph 536LE(c) whether a regulated road transport contractor has been performing work for a period of at least 12 months, a period or periods before commencement are not to be counted.

125 New applications relating to unfair contracts

An application in relation to a services contract may be made under section 536ND only if the contract was entered into on or after the commencement of this item.

126 Services contracts entered into before commencement

(1) This section applies to a services contract entered into before commencement.

(2) Despite the amendments of the Independent Contractors Act 2006 made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023, the Independent Contractors Act 2006 continues to apply to the services contract after commencement of this item as if those amendments had not been made.

_____

PART B

Schedule of the amendments made by the Senate to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 as divided and printed by the Senate

(3) JLN/Ind (Pocock) (1) [sheet 2367]

Clause 2, page 2 (table item 1, column 1), omit "3", substitute "4".

(4) JLN/Ind (Pocock) (1) [sheet 2366]

Clause 2, page 2 (table item 2), omit the table item, substitute:

(5) Govt (1) [sheet ZB287]

Clause 2, page 2 (table item 9), omit the table item, substitute:

(6) AG (1) [sheet 2361]

Clause 2, page 2 (after table item 9), insert:

(7) JLN/Ind (Pocock) (1) [sheet 2365]

Clause 2, page 3 (table item 14), omit "the same time as", substitute "immediately after the commencement of".

(8) Govt (2) [sheet ZB287]

Clause 2, page 3 (table item 21), omit the table item, substitute:

(9) JLN/Ind (Pocock) (1) [sheet 2371 revised]

Clause 2, page 3 (after table item 21), insert:

(10) Govt (3) [sheet ZB287]

Clause 2, page 3 (table item 22), omit the table item, substitute:

(11) Govt (1) [sheet ZC235]

Clause 2, page 3 (after table item 22), insert:

(12) JLN/Ind (Pocock) (2) [sheet 2367]

Page 4 (after line 11), after clause 3, insert:

4 Review of operation of amendments made by this Act

(1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act, including but not limited to the new jurisdictions relating to regulated workers and the right to disconnect.

(2) Without limiting the matters that may be considered when conducting the review, the review must:

(a) consider whether the operation of the amendments made by this Act is appropriate and effective; and

(b) identify any unintended consequences of the amendments made by this Act; and

(c) consider whether amendments of the Fair Work Act 2009, or any other legislation, are necessary to:

(i) improve the operation of the amendments made by this Act; or

(ii) rectify any unintended consequences identified under paragraph (b).

(3) The review must commence no later than 2 years after the day on which this Act receives the Royal Assent.

(4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.

(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(13) JLN/Ind (Pocock) (2) [sheet 2366]

Schedule 1, item 1, page 5 (line 27), omit "irrespective of", substitute "in addition to".

(14) JLN/Ind (Pocock) (3) [sheet 2366]

Schedule 1, item 1, page 6 (line 2), after "which", insert "may".

(15) JLN/Ind (Pocock) (4) [sheet 2366]

Schedule 1, item 1, page 6 (line 5), after "offer", insert ", or not offer,".

(16) JLN/Ind (Pocock) (5) [sheet 2366]

Schedule 1, item 1, page 7 (lines 1 to 17), omit subsection 15A(4), substitute:

Exceptions to general rule

(4) Despite subsection (1), an employee is not a casual employee of an employer if:

(a) the contract of employment includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and

(b) the employee is a member of the academic staff or teaching staff of a higher education institution; and

(c) the employee is covered by one of the following modern awards:

(i) the Higher Education Industry-Academic Staff-Award 2020 as in force from time to time;

(ii) the Higher Education Industry-General Staff-Award 2020 as in force from time to time; and

(d) the employee is not a State public sector employee of a State within the meaning of subsection 30A(1).

Note 1: A modern award covers an employee if the award is expressed to cover the employee, even if the modern award does not apply to the employee because an enterprise agreement applies to the employee in relation to that particular employment (see subsection 57(1) which deals with interaction between modern awards and enterprise agreements).

Note 2: This means an employee on a fixed term contract who is not covered by paragraphs (4)(b) and (c) may be a casual employee or may be other than a casual employee, depending on whether the employee satisfies the requirements of subsections (1) to (3).

(17) JLN/Ind (Pocock) (6) [sheet 2366]

Schedule 1, item 1, page 7 (line 23), omit "or converted".

(18) JLN/Ind (Pocock) (7) [sheet 2366]

Schedule 1, item 1, page 7 (line 26), omit "or converted".

(19) JLN/Ind (Pocock) (8) [sheet 2366]

Schedule 1, item 1, page 7 (line 28), omit "or converted".

(20) JLN/Ind (Pocock) (9) [sheet 2366]

Schedule 1, item 3, page 8 (lines 3 and 4), omit "or converted".

(21) JLN/Ind (Pocock) (10) [sheet 2366]

Schedule 1, item 5, page 8 (line 12), omit ", or conversion of,".

(22) JLN/Ind (Pocock) (11) [sheet 2366]

Schedule 1, item 6, page 9 (lines 17 to 23), omit subparagraphs 66AAB(d)(ii) and (iii).

(23) JLN/Ind (Pocock) (12) [sheet 2366]

Schedule 1, item 6, page 10 (line 15), omit "detailed".

(24) JLN/Ind (Pocock) (13) [sheet 2366]

Schedule 1, item 6, page 10 (line 16), omit "decision;", substitute "decision.".

(25) JLN/Ind (Pocock) (14) [sheet 2366]

Schedule 1, item 6, page 10 (lines 17 to 24), omit paragraph 66AAC(2)(d).

(26) JLN/Ind (Pocock) (15) [sheet 2366]

Schedule 1, item 6, page 11 (lines 3 to 8), omit paragraph 66AAC(4)(b), substitute:

(b) there are fair and reasonable operational grounds for not accepting the notification;

(27) Govt (1) [sheet TD103]

Schedule 1, item 6, page 11 (line 13), omit "Note", substitute "Note 1".

(28) JLN/Ind (Pocock) (16) [sheet 2366]

Schedule 1, item 6, page 11 (lines 13 and 14), omit the note.

(29) Govt (2) [sheet TD103]

Schedule 1, item 6, page 11 (after line 14), at the end of subsection 66AAC(4), add:

Note 2: In relation to paragraph (4)(c), see (for example) the APS Employment Principle at paragraph 10A(1)(c) of the Public Service Act 1999 (which deals with decisions based on merit) and any directions made under subsection 11A(2) of that Act in relation to that principle.

(30) JLN/Ind (Pocock) (17) [sheet 2366]

Schedule 1, item 6, page 11 (after line 14), at the end of section 66AAC, add:

(5) For the purposes of paragraph (4)(b), fair and reasonable operational grounds for not accepting the notification include the following:

(a) substantial changes would be required to the way in which work in the employer's enterprise is organised;

(b) there would be significant impacts on the operation of the employer's enterprise;

(c) substantial changes to the employee's terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument that would apply to the employee as a full-time employee or part-time employee (as the case may be).

Note: For the purposes of paragraphs (5)(a) and (c), substantial changes include changes that significantly affect the way an employee would need to work.

(31) JLN/Ind (Pocock) (18) [sheet 2366]

Schedule 1, item 7, page 11 (lines 25 to 27), omit the item, substitute:

7 Subdivision B of Division 4A of Part 2-2

Repeal the Subdivision.

(32) JLN/Ind (Pocock) (19) [sheet 2366]

Schedule 1, item 9, page 11 (lines 28 and 29), omit the item.

(33) JLN/Ind (Pocock) (20) [sheet 2366]

Schedule 1, item 12, page 12 (line 5), omit "or conversion".

(34) JLN/Ind (Pocock) (21) [sheet 2366]

Schedule 1, item 12, page 12 (line 8), omit "or paragraph 66E(1)(c)".

(35) JLN/Ind (Pocock) (22) [sheet 2366]

Schedule 1, item 14, page 12 (line 25), omit "or convert".

(36) JLN/Ind (Pocock) (23) [sheet 2366]

Schedule 1, item 14, page 12 (lines 27 and 28), omit "or convert".

(37) Ind (Thorpe) (1) [sheet 2374]

Schedule 1, item 14, page 12 (after line 32), after subsection 66L(2), insert:

(3) To avoid doubt, each of the following is a workplace right within the meaning of Part 3-1:

(a) giving an employer a notification under section 66AAB;

(b) receiving a response from an employer in accordance with section 66AAC;

(c) being taken to be a full-time employee or part-time employee under section 66AAD;

(d) receiving an offer or notice in accordance with sections 66B and 66C;

(e) accepting an offer and receiving a notice under section 66E;

(f) participating in a dispute about the operation of this Division in accordance with sections 66M and 66MA.

Note: The general protections provisions in Part 3-1 prohibit adverse action, coercion, undue influence or pressure, and misrepresentations because of a workplace right of an employee.

(38) JLN/Ind (Pocock) (24) [sheet 2366]

Schedule 1, item 15, page 13 (lines 7 to 11), omit subsection 66M(2).

(39) JLN/Ind (Pocock) (25) [sheet 2366]

Schedule 1, item 15, page 13 (lines 12 to 15), omit subsection 66M(3).

(40) JLN/Ind (Pocock) (26) [sheet 2366]

Schedule 1, item 15, page 14 (line 9) to page 15 (line 6), omit subsections 66M(7) to (9).

(41) JLN/Ind (Pocock) (27) [sheet 2366]

Schedule 1, item 15, page 15 (lines 19 to 28), omit subsection 66M(11) (not including the heading), substitute:

(11) Without limiting section 609, the procedural rules may provide, in relation to a dispute between an employer and employee that has been referred to the FWC under subsection (5) of this section, for the joinder of the following as parties to the dispute:

(a) any other employee that has a dispute to which this section applies with the same employer;

(b) any employee organisation that is entitled to represent the industrial interests of such an employee.

(42) JLN/Ind (Pocock) (28) [sheet 2366]

Schedule 1, item 15, page 15 (line 31) to page 16 (line 6), omit subsection 66MA(1) (not including the heading), substitute:

(1) For the purposes of paragraph 66M(6)(b), the FWC may deal with the dispute by arbitration, including by making any orders it considers appropriate, including (but not limited to) any order referred to in subsection (4) of this section.

(43) JLN/Ind (Pocock) (29) [sheet 2366]

Schedule 1, item 15, page 17 (lines 5 to 12), omit subsection 66MA(7).

(44) JLN/Ind (Pocock) (30) [sheet 2366]

Schedule 1, item 16, page 17 (lines 18 and 19), omit "or converted".

(45) JLN/Ind (Pocock) (31) [sheet 2366]

Schedule 1, item 17, page 17 (line 22), omit "or converted".

(46) JLN/Ind (Pocock) (32) [sheet 2366]

Schedule 1, item 18A, page 18 (lines 1 and 2), omit the item, substitute:

18A Paragraphs 125A(2)(b) to (da)

Repeal the paragraphs.

(47) Ind (Thorpe) (1) [sheet 2373]

Schedule 1, item 19, page 18 (lines 3 to 11), omit the item, substitute:

19 Section 125B

Repeal the section, substitute:

125B Giving employees the Casual Employment Information Statement

(1) An employer must give a casual employee the Casual Employment Information Statement:

(a) before, or as soon as practicable after, the employee starts employment as a casual employee with the employer; and

(b) as soon as practicable after the employee has been employed by the employer for a period of 6 months beginning the day the employment started; and

(c) as soon as practicable after the following:

(i) the employee has been employed by the employer for a period of 12 months beginning the day the employment started;

(ii) the end of any subsequent period of 12 months for which the employee is employed by the employer.

(2) However, paragraph (1)(b) and subparagraph (1)(c)(ii) do not apply if at the time the employer has employed the employee for the period referred to in that paragraph or subparagraph, the employer is a small business employer.

(3) This section does not, apart from the operation of paragraph (1)(b), require the employer to give the employee the Statement more than once in any 12 months.

Note: This is relevant if the employer employs the employee more than once in the 12 months.

(48) Ind (Thorpe) (2) [sheet 2373]

Schedule 1, page 18 (after line 11), after item 19, insert:

19A Paragraph 333E(1)(c)

Repeal the paragraph, substitute:

(c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and

(49) Ind (Thorpe) (2) [sheet 2374]

Schedule 1, page 18 (after line 11), after item 19, insert:

19A After paragraph 341(2)(i)

Insert:

(ia) giving a notification, or receiving an offer or notice, under Division 4A of Part 2-2 (which deals with casual employment);

(50) JLN/Ind (Pocock) (33) [sheet 2366]

Schedule 1, items 23A to 23C, page 19 (line 11) to page 20 (line 9), omit the items, substitute:

23A Subparagraphs 548(1B)(a)(i) to (iv)

Repeal the subparagraphs.

23B Subsection 548(1B) (note)

Repeal the note.

(51) AG (2) [sheet 2361]

Schedule 1, page 38 (after line 14), after Part 7, insert:

Part 8 — Right to disconnect

Fair Work Act 2009

94 Section 12

Insert:

right to disconnect term means a term in a modern award that provides for the exercise of an employee's rights set out in subsections 333M(1) and (2).

Note: Section 333M deals with the right to disconnect.

95 At the end of Subdivision C of Division 3 of Part 2-3

Add:

149F Right to disconnect

A modern award must include a right to disconnect term.

Note: Right to disconnect term is defined in section 12.

96 At the end of section 321

Add:

Division 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee's working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.

97 At the end of Part 2-9

Add:

Division 6 — Employee right to disconnect

Subdivision A — Employee right to disconnect

333M Employee right to disconnect

(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.

(2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable.

(3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) the reason for the contact or attempted contact;

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c) the extent to which the employee is compensated:

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee's ordinary hours of work;

(d) the nature of the employee's role and the employee's level of responsibility;

(e) the employee's personal circumstances (including family or caring responsibilities).

Note: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non-monetary compensation.

(4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3-1.

Note: The general protections provisions in Part 3-1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.

(5) For the avoidance of doubt, an employee's refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.

(6) For the avoidance of doubt, if:

(a) an employee is covered by an enterprise agreement; and

(b) the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);

the right to disconnect term in the agreement continues to apply to the employee.

Subdivision B — Disputes about the employee right to disconnect

333N Disputes about the employee right to disconnect

(1) This section applies if:

(a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection 333M(1) or (2) and:

(i) the employer reasonably believes that the refusal is unreasonable; or

(ii) the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable; or

(b) there is another dispute between the employer and the employee about the operation of section 333M.

Workplace level discussions

(2) In the first instance, the parties to the dispute mustattempt to resolve the dispute at the workplace level by discussions between the parties.

Application to FWC to deal with dispute

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the FWC to do either or both of the following:

(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);

(b) otherwise deal with the dispute.

Representatives

(4) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) applying to the FWC to make an order under section 333P or otherwise deal with the dispute; or

(c) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

Subdivision C — Orders to stop refusing contact or to stop taking certain actions

333P Orders to stop refusing contact or to stop taking certain actions

(1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply:

(a) an employee has unreasonably refused to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) and there is a risk the employee will continue to do so;

(b) an employee's refusal to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) is not unreasonable and there is a risk that the employer will:

(i) take disciplinary or other action against the employee because of the employer's belief that the refusal is unreasonable; or

(ii) continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee's refusal to do so;

then the FWC may make an order under subsection (2).

(2) The FWC may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount):

(a) if the FWC is satisfied that the circumstance set out in paragraph (1)(a) applies—to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or

(b) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(i) applies—to prevent the employer from taking the action; or

(c) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(ii) applies—to prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.

(3) The FWC must:

(a) start to deal with an application, to the extent that it consists of an application for an order under this section, within 14 days after the application is made; and

(b) deal with the application as soon as is reasonably practicable after the FWC starts to deal with it.

(4) Despite subsection (2), the FWC may dismiss an application made under subsection 333N(3), to the extent that it consists of an application for an order under this section, if the FWC considers that the application:

(a) is frivolous or vexatious; or

(b) might involve matters that relate to:

(i) Australia's defence; or

(ii) Australia's national security; or

(iii) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(iv) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss an application, see section 587.

(5) If an employer considers an application made under subsection 333N(3) (the original application) to be frivolous or vexatious, the employer may apply to the FWC:

(a) to have the original application dealt with expeditiously and efficiently; and

(b) a decision on the original application communicated by the FWC to the parties to the dispute in a timely way.

333Q Contravening an order

A person to whom an order under section 333P applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

333R Actions under work health and safety laws permitted

Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under subsection 333N(3) that includes an application for an order under section 333P.

Note: Ordinarily, if a person makes an application under subsection 333N(3) for an order under section 333P in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.

333S This Subdivision is not to prejudice Australia's defence, national security etc.

Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

(a) Australia's defence; or

(b) Australia's national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

333T Declarations by the Director-General of Security

(1) Without limiting section 333S, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

333U Declarations by the Director-General of ASIS

(1) Without limiting section 333S, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

Subdivision D — Dealing with disputes in other ways

333V Dealing with disputes in other ways

If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P:

(a) the FWC must deal with the dispute; and

(b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)). See section 333P if the application also includes an application for an order under that section.

Subdivision E — Guidelines

333W Guidelines

(1) The FWC must make written guidelines in relation to the operation of this Division.

(2) Guidelines made under subsection (1) are not a legislative instrument.

98 Subsection 539(2) (after table item 10D)

Insert:

(52) JLN/Ind (Pocock) (1) [sheet 2368]

Schedule 1, item 122, page 42 (line 11), at the end of subparagraph 519(1)(b)(ii), add ", and the FWC reasonably believes that advance notice of the entry given by an entry notice would hinder an effective investigation into the suspected contravention or contraventions".

(53) JLN/Ind (Pocock) (2) [sheet 2365]

Schedule 1, items 124 to 133, page 43 (line 4) to page 46 (before line 1), omit the items, substitute:

124 Section 12

Insert:

selected civil remedy provision means a provision referred to in column 1 of item 1, 2, 3, 4, 5, 7, 8, 9, 10, 10A, 11A, 29, 29AA, 29A, 32, 33, 33A or 34 in the table in subsection 539(2).

(54) JLN/Ind (Pocock) (3) [sheet 2365]

Schedule 1, item 137, page 46 (table item 11A), omit "300", substitute "60".

(55) JLN/Ind (Pocock) (4) [sheet 2365]

Schedule 1, items 138 to 141, page 46 (line 9) to page 47 (line 6), omit the items.

(56) JLN/Ind (Pocock) (5) [sheet 2365]

Schedule 1, item 142, page 47 (line 8), omit "300", substitute "60".

(57) JLN/Ind (Pocock) (6) [sheet 2365]

Schedule 1, items 143 and 144, page 47 (lines 9 to 12), omit the items, substitute:

143 Subsection 546(2)

Omit "The", substitute "Subject to this section, the".

144 After subsection 546(2)

Insert:

(2AA) Despite paragraph (2)(b), if:

(a) the civil remedy provision is a selected civil remedy provision; and

(b) the person is a body corporate; and

(c) when the application for the order is made, the person is not a small business employer;

the pecuniary penalty must not be more than 5 times the amount worked out in accordance with paragraph (2)(b).

(58) JLN/Ind (Pocock) (7) [sheet 2365]

Schedule 1, item 149, page 48 (lines 9 and 10), omit the item, substitute:

149 Section 12 (definition of selected civil remedy provision )

Omit "or 34", substitute ", 34 or 34AAA".

(59) JLN/Ind (Pocock) (8) [sheet 2365]

Schedule 1, item 152, page 49 (lines 1 and 2), omit the item.

(60) JLN/Ind (Pocock) (9) [sheet 2365]

Schedule 1, item 153, page 49 (lines 5 to 27), omit subsection 546(2A), substitute:

(2A) Despite paragraph (2)(b) and subsection (2AA), if:

(a) the civil remedy provision is a selected civil remedy provision; and

(b) the person is a body corporate; and

(c) when the application for the order is made, the person is not a small business employer; and

(d) the contravention is associated with an underpayment amount; and

(e) the application specifies that the applicant wants the maximum penalty to be calculated based on a multiple of the underpayment amount; and

(f) the person is not taken to have contravened the civil remedy provision under section 550 (person involved in a contravention);

the pecuniary penalty must not be more than the greater of the following:

(g) the amount worked out in accordance with subsection (2AA);

(h) 3 times the underpayment amount.

Note: For when contravention of a civil remedy provision is associated with an underpayment amount, see section 546A.

(61) JLN/Ind (Pocock) (2) [sheet 2371 revised]

Schedule 1, page 61 (after line 31), after Part 15, insert:

Part 15A — Provisions relating to the application of section 15AA

Fair Work Act 2009

237A Before section 15A

Insert:

15AB Individual may elect that section 15AA does not apply

(1) This section applies to a relationship between a person and an individual.

Person may notify individual before the section 15AA commencement that they may give an opt out notice

(2) The person may give the individual a written notice before the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may, on the section 15AA commencement, become a relationship in which the person is the employer of the individual because of the operation of section 15AA.

Person may notify individual on or after the section 15AA commencement that they may give an opt out notice

(3) The person may give the individual a written notice on or after the section 15AA commencement stating that the individual may give the person an opt out notice, if the person considers that the relationship may be a relationship in which the person is the employer of the individual because of the operation of section 15AA.

Earnings requirement

(4) The person must not give the individual a notice under subsection (2) or (3) unless the person considers that, when the notice is given, the individual's earnings for work performed under the relationship exceed the contractor high income threshold.

Individual may give an opt out notice

(5) The individual may give an opt out notice to the person, stating that the individual elects that section 15AA is not to apply to the relationship between the person and the individual:

(a) if the person has given a notice to the individual under subsection (2) or (3) of this section—within 21 days of the giving of the notice; or

(b) if the person has not given a notice to the individual under subsection (2) or (3) of this section—at any time after the commencement of this section.

(6) The individual may give only one opt out notice in respect of the relationship.

Opt out notice to include a statement about earnings

(7) The opt out notice must state that the individual considers that the individual's earnings for work performed under the relationship exceed the contractor high income threshold when the opt out notice is given.

Definitions

(8) In this section, and in sections 15AC and 15AD:

opt out notice means a notice under subsection (5).

section 15AA commencement means the commencement of section 15AA of this Act.

Note: Section 15AA of this Act is inserted by item 237 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which commences in accordance with item 21 of the table in subsection 2(1) of that Act.

15AC Effect of an opt out notice

(1) This section applies if an individual gives an opt out notice to a person in respect of the relationship between the person and the individual in accordance with section 15AB.

Opt out notice given before the section 15AA commencement

(2) If the opt out notice is given before the section 15AA commencement, and is not revoked before that commencement under section 15AD, then:

(a) by force of this section, section 15AA does not start to apply to the relationship on that commencement; and

(b) section 15AA does not apply to the relationship after that commencement, unless the opt out notice is revoked.

Opt out notice given on or after the section 15AA commencement

(3) If the opt out notice is given on or after the section 15AA commencement, then:

(a) by force of this section, section 15AA ceases to apply to the relationship on the day on which the opt out notice is given; and

(b) section 15AA does not apply to the relationship on or after that day, unless the opt out notice is revoked.

Note: If an individual does not give an opt out notice to a person in accordance with section 15AB, section 15AA starts to apply, or continues to apply, (as applicable) to the relationship between the person and the individual.

15AD Opt out notice may be revoked by an individual

(1) An individual who has given an opt out notice to a person may (subject to subsection (4)), at any time after giving the opt out notice, revoke the opt out notice by giving written notice (a revocation notice) to the person that the individual elects that section 15AA is to apply to the relationship between the person and the individual.

Revocation before the section 15AA commencement

(2) If an individual gives a revocation notice to a person before the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after that commencement.

Revocation on or after the section 15AA commencement

(3) If an individual gives a revocation notice to a person on or after the section 15AA commencement, section 15AA applies, by force of this subsection, to the relationship between the person and the individual on and after the day on which the revocation notice is given.

(4) An individual may give only one revocation notice in respect of a particular relationship.

(62) Govt (2) [sheet ZC235]

Schedule 1, item 238, page 62 (lines 23 and 24), omit the paragraph beginning "Division 4" in section 40C.

(63) Govt (3) [sheet ZC235]

Schedule 1, item 238, page 63 (line 17), after paragraph 40D(b), insert:

; (c) the need to avoid adverse impacts on the sustainability, performance and competitiveness of supply chains and the national economy;

(d) the need for minimum standards in road transport contractual chains.

(64) Govt (4) [sheet ZC235]

Schedule 1, item 238, page 63 (lines 20 to 22), omit "modern awards and road transport minimum standards orders relating to the road transport industry", substitute "modern awards relating to the road transport industry, road transport minimum standards orders and road transport contractual chain orders".

(65) Govt (5) [sheet ZC235]

Schedule 1, item 238, page 63 (after line 34), after paragraph 40E(2)(b), insert:

(ba) the making and varying of road transport contractual chain orders and road transport contractual chain guidelines;

(66) JLN (1) [sheet 2372]

Schedule 1, item 238, page 65 (after line 10), at the end of section 40G, add:

(3) The Road Transport Advisory Group must establish a subcommittee under subsection (1) of which a majority of the members are owner drivers or representatives of owner drivers:

(a) if a proposed road transport minimum standards order or a proposed road transport contractual chain order will cover owner drivers; or

(b) if the FWC proposes to perform a function or exercise a power in relation to a road transport minimum standards order or a road transport contractual chain order that has, or may have, an effect upon owner drivers that is more than minor or technical.

(67) Govt (6) [sheet ZC235]

Schedule 1, item 238, page 65 (line 11) to page 66 (line 33), omit Division 4.

(68) Govt (1) [sheet ZC237]

Schedule 1, item 241, page 68 (line 12), omit "paragraph 536JY(1)(a)", substitute "paragraph 536JY(1)(b)".

(69) Govt (1) [sheet ZB259]

Schedule 1, item 241, page 68 (after line 14), after paragraph 617(10B)(c), insert:

(ca) a deferral determination made under subsection 536KQJ(1) in relation to a road transport minimum standards order;

(cb) a suspension determination made under subsection 536KQP(1) in relation to a road transport minimum standards order;

(cc) a determination made under subsection 536KQ(1) varying or revoking a road transport minimum standards order to give effect to a decision to vary or revoke the minimum standards order under paragraph 536KQS(2)(a) or (b);

(cd) a decision made under paragraph 536KQS(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport minimum standards order;

(70) Govt (7) [sheet ZC235]

Schedule 1, item 241, page 68 (after line 17), after paragraph 617(10B)(d), insert:

(da) a road transport contractual chain order made under section 536PD or a determination made under 536PT varying or revoking a road transport contractual chain order;

(db) road transport contractual chain guidelines made under section 536QP or a determination made under section 536QW varying or revoking road transport contractual chain guidelines;

(dc) a deferral determination made under subsection 536QB(1) in relation to a road transport contractual chain order;

(dd) a suspension determination made under subsection 536QG(1) in relation to a road transport contractual chain order;

(de) a determination made under subsection 536PT(1) varying or revoking a road transport contractual chain order to give effect to a decision to vary or revoke the road transport contractual chain order under paragraph 536QK(2)(a) or (b);

(df) a decision made under paragraph 536QK(2)(a), (b) or (c) as to whether or not to vary or revoke a road transport contractual chain order;

(71) Govt (2) [sheet ZC237]

Schedule 1, item 241, page 68 (line 28), after "or modern award", insert "or prescribed instrument".

(72) Govt (2) [sheet ZB259]

Schedule 1, item 245, page 69 (after line 32), after subsection 620(1E), insert:

Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport minimum standards orders

(1F) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(ca), (cb), (cc) or (cd) in relation to a road transport minimum standards order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport minimum standards order concerned.

(73) Govt (8) [sheet ZC235]

Schedule 1, page 70 (before line 1), before item 246, insert:

245A Before subsection 620(2)

Additional requirement relating to the constitution of an Expert Panel for deferral or suspension of road transport contractual chain orders

(1G) If an Expert Panel is constituted under subsection (1E) for a purpose referred to in paragraph 617(10B)(dc), (dd), (de) or (df) in relation to a road transport contractual chain order (which deal with deferral and suspension), a majority of the members of the Expert Panel must not be members of the Expert Panel that made the road transport chain order concerned.

(74) Govt (9) [sheet ZC235]

Schedule 1, heading to Division 3, page 70 (line 6), at the end of the heading, add "and persons in a road transport contractual chain".

(75) Govt (10) [sheet ZC235]

Schedule 1, item 248, page 70 (line 10), at the end of the heading to Division 3A, add "and persons in a road transport contractual chain".

(76) JLN/Ind (Pocock) (1) [sheet 2375]

Schedule 1, item 248, page 74 (line 2), heading to section 15KA, omit "relating to digital platform work".

(77) JLN/Ind (Pocock) (2) [sheet 2375]

Schedule 1, item 248, page 74 (after line 11), after subsection 15KA(1), insert:

(1A) For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between an individual and a person, any steps taken by a road transport business to comply with its obligations under any of the following in relation to the individual are to be disregarded:

(a) Part 3A-3;

(b) the Road Transport Industry Termination Code;

(c) an order made under, or for the purposes of, Chapter 3A.

(78) JLN/Ind (Pocock) (3) [sheet 2375]

Schedule 1, item 248, page 74 (after line 15), at the end of section 15KA, add:

(3) A regulated road transport contractor to whom a road transport minimum standards order applies in relation to particular work in the road transport industry is not an employee of any person in relation to that work.

(79) Govt (3) [sheet ZC237]

Schedule 1, item 248, page 74 (lines 29 to 31), omit paragraph 15L(1)(b), substitute:

(b) any of the following processes payments referable to the work performed by the independent contractors:

(i) the operator of the application, website or system;

(ii) an associated entity of the operator;

(iii) a person contracted, whether directly or through one or more interposed entities, by the operator or an associated entity of the operator to process the payments.

(80) JLN/Ind (Pocock) (1) [ sheet 2376]

Schedule 1, item 248, page 76 (line 27), omit "one", substitute "2".

(81) Govt (11) [sheet ZC235]

Schedule 1, item 248, page 78 (after line 23), after section 15R, insert:

15RA Meanings of road transport contractual chain and in a road transport contractual chain

(1) A road transport contractual chain means a chain or series of contracts or arrangements:

(a) under which work is performed for a party to the first contract or arrangement in the chain or series by a regulated road transport contractor or a road transport employee-like worker under a services contract, or by an employee; and

(b) in which at least one party to the first contract or arrangement in the chain or series is a constitutional corporation.

(2) A person is in a road transport contractual chain if:

(a) the person is a party (a primary party) to the first contract or arrangement in the road transport contractual chain; or

(b) the person is a party (a secondary party) to a subsequent contract or arrangement in the road transport contractual chain, being a contract or arrangement under which work is performed for the secondary party by a regulated road transport contractor or a road transport employee-like worker under a services contract, or by an employee; or

(c) the person is a regulated road transport contractor or a road transport employee-like worker who performs work under a services contract in the road transport contractual chain.

(3) Despite subsection (2), an individual is not in a road transport contractual chain in relation to:

(a) the delivery of a thing to the individual by a regulated road transport contractor, a road transport employee-like worker or an employee, if the delivery of the thing is solely for the individual's private or domestic purposes; or

(b) the consignment of a thing by the individual for delivery by a regulated road transport contractor, a road transport employee-like worker or an employee if the consignment of the thing is solely for the individual's private or domestic purposes; or

(c) work performed by the individual in the capacity of an employee; or

(d) work performed by the individual in an industryprescribed by the regulations for the purposes of this subsection.

(4) For the purposes of paragraph (3)(d):

(a) an industry may be specified by name or by inclusion in a specified class or specified classes; and

(b) an industry may be specified in respect of work in the road transport industry, or in respect of specified forms of such work.

(5) For the purposes of subsection (1), work performed by a regulated road transport contractor or a road transport employee-like worker under a services contract, or by an employee, in a chain or series of contracts or arrangements:

(a) is taken to be performed for the person who engaged the regulated road transport contractor, road transport employee-like worker or employee; and

(b) is also taken to be performed for each party to a contract or arrangement in the chain or series of contracts or arrangements.

(6) This section also has the effect that it would have if it only applied to a secondary party to the extent that rights conferred on, and obligations imposed on, the secondary party by Chapter 3B have, or are likely to have, an impact on the business of the constitutional corporation that is a primary party to the first contract or arrangement in a road transport contractual chain.

(7) This section also has the effect that it would have if it only applied to a secondary party to a contract or arrangement in a road transport contractual chain that:

(a) is a constitutional corporation; or

(b) is a party to a contract with a constitutional corporation; or

(c) is a national system employer to the extent that it engages national system employees to perform work in the road transport industry; or

(d) is a regulated business; or

(e) is engaged in constitutional trade or commerce; or

(f) is incorporated in a Territory; or

(g) is prescribed by the regulations.

15RB Meaning of a road transport employee-like worker

A road transport employee-like worker means an employee-like worker who performs work in the road transport industry.

(82) Govt (3) [sheet ZB259]

Schedule 1, item 249, page 80 (after line 5), after the paragraph beginning "Division 3" in section 536J, insert:

Division 3A deals with deferral and suspension of minimum standards orders by the Minister and deferral and suspension of road transport minimum standards orders by the FWC.

Division 3B deals with consultation before varying or revoking road transport minimum standards orders after deferral.

Division 3C deals with consultation before varying or revoking employee-like worker minimum standards orders after deferral.

(83) Govt (1) [sheet ZC272]

Schedule 1, item 249, page 80 (line 6), omit "Division 4 specifies rules about certain retrospective variations.".

(84) Govt (4) [sheet ZC237]

Schedule 1, item 249, page 83 (line 26), omit "24 months", substitute "12 months".

(85) Govt (5) [sheet ZC237]

Schedule 1, item 249, page 83 (after line 27), after subsection 536JF(3), insert:

(3A) Despite subsection (3), the specified day may be a day not earlier than 6 months after the relevant notice of intent for the order was published, if the FWC is satisfied that there are circumstances that urgently require specifying such a day.

(86) Govt (2) [sheet ZC272]

Schedule 1, item 249, page 84 (lines 2 to 5), omit all the words from and including "made, unless" to and including "earlier day", substitute "made".

(87) Govt (6) [sheet ZC237]

Schedule 1, item 249, page 89 (after line 6), at the end of section 536JN, add:

References to State and Territory laws

(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(88) Govt (7) [sheet ZC237]

Schedule 1, item 249, page 89 (lines 14 to 20), omit "or regulated worker" (wherever occurring), substitute ", regulated worker or party".

(89) Govt (8) [sheet ZC237]

Schedule 1, item 249, page 89 (line 23), omit "regulated business or regulated worker", substitute "the regulated business, regulated worker or party".

(90) Govt (9) [sheet ZC237]

Schedule 1, item 249, page 89 (line 28), omit "or regulated worker", substitute ", regulated worker or party".

(91) Govt (10) [sheet ZC237]

Schedule 1, item 249, page 90 (after line 23), at the end of subsection 536JP(3), add:

Note: For interaction of these laws with minimum standards orders, see section 536JS.

(92) Govt (11) [sheet ZC237]

Schedule 1, item 249, page 90 (after line 28), at the end of section 536JP, add:

(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(93) Govt (12) [sheet ZC237]

Schedule 1, item 249, page 92 (after line 33), after subsection 536JS(1), insert:

(1A) It is the intent of the Parliament that, for an employee-like worker or digital labour platform operator to whom an employee-like worker minimum standards order applies in relation to a services contract, this Chapter applies to the exclusion of the laws described in subsection 536JP(3) to the extent that those laws would otherwise affect the rights, entitlements, obligations and liabilities of the employee-like worker or digital labour platform operator in relation to the services contract.

(94) Govt (13) [sheet ZC237]

Schedule 1, item 249, page 93 (line 1), omit "subsection (1)", substitute "subsections (1) and (1A)".

(95) Govt (14) [sheet ZC237]

Schedule 1, item 249, page 93 (line 3), omit "prescribed by the regulations", substitute "specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified".

(96) Govt (15) [sheet ZC237]

Schedule 1, item 249, page 93 (lines 5 and 6), omit "prescribed for the purposes of paragraph (a);", substitute "described in paragraph (a).".

(97) Govt (16) [sheet ZC237]

Schedule 1, item 249, page 93 (lines 7 to 9), omit paragraph 536JS(2)(c).

(98) Govt (17) [sheet ZC237]

Schedule 1, item 249, page 93 (after line 9), at the end of section 536JS, add:

(3) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

(99) Govt (18) [sheet ZC237]

Schedule 1, item 249, page 93 (line 17), after "order", insert ", guidelines".

(100) Govt (19) [sheet ZC237]

Schedule 1, item 249, page 94 (line 13), at the end of subsection 536JT(4), add:

; or (c) done in accordance with a term of a collective agreement, to the extent that the term has no effect because of subsection 536MX(1) or (2) of this Act (about matters in respect of which a collective agreement may not be made, or that are primarily of a commercial nature).

(101) Govt (3) [sheet ZC272]

Schedule 1, item 249, page 94 (lines 14 to 34), omit Division 4.

(102) JLN/Ind (Pocock) (1) [sheet 2370]

Schedule 1, item 249, page 98 (line 7), after "business", insert "that is included in a class of regulated businesses".

(103) JLN/Ind (Pocock) (2) [sheet 2370]

Schedule 1, item 249, page 98 (after line 17), after subsection 536JZ(3), insert:

(3A) An application for the making of a minimum standards order must specify the class of regulated businesses to be covered by the order.

(104) JLN/Ind (Pocock) (3) [sheet 2370]

Schedule 1, item 249, page 98 (line 19), after "subsection (3)", insert "or (3A)".

(105) Govt (20) [sheet ZC237]

Schedule 1, item 249, page 98 (line 27) to page 99 (line 4), omit subsections 536K(1) and (2), substitute:

(1) This section applies to a decision to make or vary, or not to make or vary, an employee-like worker minimum standards order, other than a decision of the FWC to refuse to consider an application to make or vary such an order.

(2) Before making a decision to which this section applies, the FWC must consider whether, on the whole, the persons included (or purportedly included) in the class of employee-like workers to be covered by the order, or the order as proposed to be varied, are employee-like workers.

(106) Govt (21) [sheet ZC237]

Schedule 1, item 249, page 99 (line 5), after "included", insert "(or purportedly included)".

(107) Govt (22) [sheet ZC237]

Schedule 1, item 249, page 102 (line 13), after "make", insert "or vary".

(108) Govt (23) [sheet ZC237]

Schedule 1, item 249, page 102 (line 16), after "make", insert "or vary".

(109) Govt (24) [sheet ZC237]

Schedule 1, item 249, page 102 (line 19), after "make", insert "or vary".

(110) Govt (25) [sheet ZC237]

Schedule 1, item 249, page 102 (line 24), after "making", insert "or varying".

(111) Govt (26) [sheet ZC237]

Schedule 1, item 249, page 103 (line 12), omit "persons", substitute "entities".

(112) Govt (27) [sheet ZC237]

Schedule 1, item 249, page 103 (line 17), omit "a person or body", substitute "an entity".

(113) Govt (28) [sheet ZC237]

Schedule 1, item 249, page 103 (line 18), omit "person or body", substitute "entity".

(114) Govt (29) [sheet ZC237]

Schedule 1, item 249, page 104 (lines 4 to 8), omit subsection 536KC(6), substitute:

(6) For the purposes of subsection (1), an affected entity, in relation to a draft road transport minimum standards order published under paragraph 536KB(1)(b) is:

(a) a person or body likely to be affected by the making of a road transport minimum standards order based on the draft; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(115) JLN/Ind (Pocock) (4) [sheet 2370]

Schedule 1, item 249, page 105 (line 24), omit "operator or".

(116) JLN/Ind (Pocock) (5) [sheet 2370]

Schedule 1, item 249, page 105 (line 30), omit "one or more".

(117) JLN/Ind (Pocock) (6) [sheet 2370]

Schedule 1, item 249, page 105 (line 33) to page 106 (line 1), omit "the digital labour platform operator or operators", substitute "a digital platform operator".

(118) JLN/Ind (Pocock) (7) [sheet 2370]

Schedule 1, item 249, page 106 (lines 5 and 6), omit "the digital labour platform operator or operators", substitute "a digital platform operator".

(119) JLN/Ind (Pocock) (8) [sheet 2370]

Schedule 1, item 249, page 106 (line 9), omit "digital labour platform operator or".

(120) JLN/Ind (Pocock) (9) [sheet 2370]

Schedule 1, item 249, page 106 (lines 13 and 14), omit "may be specified by name or by", substitute "must be specified by".

(121) JLN/Ind (Pocock) (10) [sheet 2370]

Schedule 1, item 249, page 107 (line 3), paragraph 536KJ(3)(a), omit "may be specified by name or by", substitute "must be specified by".

(122) JLN/Ind (Pocock) (1) [sheet 2363 revised]

Schedule 1, item 249, page 110 (after line 5), after section 536KN, insert:

536KO Achieving the minimum standards objective

A minimum standards order may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the minimum standards objective.

(123) JLN/Ind (Pocock) (1) [sheet 2364 revised]

Schedule 1, item 249, page 110 (line 9), after "represent", insert ", or another body that represents,".

(124) JLN/Ind (Pocock) (2) [sheet 2364 revised]

Schedule 1, item 249, page 110 (line 13), after "represent", insert ", or another body that represents,".

(125) JLN/Ind (Pocock) (3) [sheet 2364 revised]

Schedule 1, item 249, page 110 (after line 19), after paragraph 536KP(c), insert:

(ca) a national or State council or federation that is effectively representative of a significant number of organisations or bodies mentioned in paragraph (a) or (b);

(126) Govt (4) [sheet ZB259]

Schedule 1, item 249, page 111 (after line 4), after subsection 536KQ(4), insert:

(5) The FWC may also make a determination under subsection (1) varying or revoking a minimum standards order to give effect to a decision under paragraph 536KQS(2)(a) or (b) to vary or revoke the minimum standards order.

Note: Subsection 536KQS(1) requires the FWC to consider whether to vary or revoke a minimum standards order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.

(127) Govt (5) [sheet ZB259]

Schedule 1, item 249, page 111 (before line 5), before Division 4, insert:

Division 3A — Deferral and suspension of minimum standards orders

Subdivision A — Ministerial declarations to defer or suspend minimum standards orders

536KQA Minister may make a declaration deferring the operation or application of a minimum standards order

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration) that defers:

(a) the coming into operation of a minimum standards order; or

(b) the application of:

(i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or

(iii) specified terms of a minimum standards order to all persons.

(2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration, and a deferral declaration made under paragraph (1)(b) is a part deferral declaration,in relation to the minimum standards order to which the deferral declaration relates.

(3) A deferral declaration in relation to a minimum standards order:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the minimum standards order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(5) The Secretary of the Department must publish a deferral declaration on the Department's website as soon as practicable after the deferral declaration is made.

536KQB Limitations on making a deferral declaration

No deferral of minimum standards order that is in operation

(1) The Minister must not make a deferral declaration in relation to a minimum standards order that has already come into operation.

Only one full deferral declaration is permitted etc.

(2)The Minister:

(a) may only make one full deferral declaration in relation to a particular minimum standards order; and

(b) must not make a full deferral declaration in relation to a particular road transport minimum standards order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport minimum standards order.

Note: The FWC may make deferral determinations in relation to road transport minimum standards orders under Subdivision B of this Division.

More than one part deferral declaration is permitted

(3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular minimum standards order.

(4) If more than one part deferral declaration or part deferral determination is made in relation to the same minimum standards order as permitted by subsection (3) of this section or subsection 536KQK(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:

(a) to whom the terms already apply when the later part deferral declaration is made; or

(b) in relation to whom the application of the terms has previously been deferred.

536KQC Operation of a minimum standards order during deferral

A minimum standards order:

(a) is not in operation during any period when a full deferral declaration in relation to the minimum standards order is in operation; and

(b) is in operation during any period when a part deferral declaration in relation to the minimum standards order is in operation.

Note: Although a minimum standards order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536KQD Minister may make a declaration suspending a minimum standards order

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration):

(a) suspending the operation of a minimum standards order; or

(b) suspending the application of:

(i) all of the terms of a minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a minimum standards order to a specified class or specified classes of persons; or

(iii) specified terms of a minimum standards order to all persons.

(2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration, and a suspension declaration made under paragraph (1)(b) is a part suspension declaration,in relation to the minimum standards order to which the suspension declaration relates.

Suspension declaration must specify period of suspension

(3) A suspension declaration must specify the period of the suspension, which:

(a) must not be longer than 12 months; and

(b) must not start before the day on which the suspension declaration is made.

When period of suspension ends

(4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).

(5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the minimum standards order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the minimum standards order—on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension declaration was made;

(b) if the FWC decides not to vary or revoke the minimum standards order:

(i) 7 days after the day on which the decision is made; or

(ii) if a 7-day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.

Classes

(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

Orders

(7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

Publication

(8) The Secretary of the Department must publish a suspension declaration on the Department's website as soon as practicable after the suspension declaration is made.

Accrued rights etc.

(9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.

536KQE Suspension declaration must be made within 12 months of certain dates

Full suspension declaration timing

(1) A full suspension declaration in relation to a minimum standards order must be made within 12 months of the day on which the minimum standards order came into operation.

Part suspension declaration timing

(2) A part suspension declaration in relation to a minimum standards order must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to a specified class of persons—the day on which all of the terms of the minimum standards order first applied to the specified class of persons;

(b) if the part suspension declaration suspends the application of all of the terms of the minimum standards order to 2 or more specified classes of persons—the day on which all of the terms of the minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension declaration suspends the application of specified terms of the minimum standards order to a specified class of persons—the day on which the specified terms first applied to the specified class of persons;

(d) if the part suspension declaration suspends the application of specified terms of the minimum standards order to 2 or more specified classes of persons—the day on which the specified terms of the minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension declaration suspends the application of specified terms of the minimum standards order to all persons—the day on which the specified terms first applied to all persons.

536KQF Operation of a minimum standards order during suspension

A minimum standards order:

(a) is not in operation during any period when a full suspension declaration in relation to the minimum standards order is in operation; and

(b) is in operation during any period when a part suspension declaration in relation to the minimum standards order is in operation.

Note: Although a minimum standards order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536KQG Consultation requirements

The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.

Subdivision B — FWC may defer or suspend road transport minimum standards orders

536KQH Applications for a deferral determination for a road transport minimum standards order

(1) An application may be made to the FWC for a determination under subsection 536KQJ(1) (a deferral determination) in relation to a road transport minimum standards order.

(2) An application may be made under subsection (1) by any of the following:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;

(b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;

(c) a road transport business covered by the road transport minimum standards order.

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

(3) An application for a deferral determination must not be made in relation to a road transport minimum standards order that has already come into operation.

Note: If the road transport minimum standards order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application, see subsection 536KQL(2).

536KQJ FWC may make a determination deferring the operation or application of a road transport minimum standards order

(1) The FWC may, on application under subsection 536KQH(1), make a deferral determination:

(a) that defers the coming into operation of a road transport minimum standards order; or

(b) that defers the application of:

(i) all of the terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(ii) specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(iii) specified terms of a road transport minimum standards order to all persons.

(2) A deferral determination made under paragraph (1)(a) is a full deferral determination, and a deferral determination made under paragraph (1)(b) is a part deferral determination,in relation to the road transport minimum standards order to which the deferral determination relates.

(3) A deferral determination in relation to a road transport minimum standards order:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation on the day on which the FWC decides under subsection 536KQS(2) whether or not to vary or revoke the road transport minimum standards order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.

536KQK Limitations on making a deferral determination

No deferral of road transport minimum standards order that is in operation

(1) The FWC must not make a deferral determination in relation to a road transport minimum standards order that has already come into operation.

Only one full deferral determination is permitted etc.

(2)The FWC:

(a) may only make one full deferral determination in relation to a particular road transport minimum standards order; and

(b) must not make a full deferral determination in relation to a particular road transport minimum standards order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport minimum standards order.

Note: The Minister may make deferral declarations in relation to minimum standards orders under Subdivision A of this Division

More than one part deferral determination is permitted

(3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport minimum standards order.

(4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport minimum standards order as permitted by subsection (3) of this section or subsection 536KQB(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:

(a) to whom the term already applies when the later part deferral determination is made; or

(b) in relation to whom the application of the terms has previously been deferred.

536KQL Decision on an application for a deferral determination in relation to a road transport minimum standards orders

(1) If an application for a deferral determination in relation to a road transport minimum standards order is made, the FWC must:

(a) consider the application as soon as practicable; and

(b) consult the Road Transport Advisory Group before making a decision on the application.

(2) If the road transport minimum standards order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.

(3) The FWC may:

(a) make the deferral determination under subsection 536KQJ(1); or

(b) decide not to make the deferral determination.

(4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and

(b) the significant new facts or evidence demonstrate that the road transport minimum standards order will not provide, or has not provided, an appropriate safety net of minimum standards for parties in the road transport industry, having regard to the minimum standards objective and the road transport objective.

(5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport minimum standards order concerned have previously been made.

(6) The FWC must publish a deferral determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

536KQM Operation of a road transport minimum standards order during deferral

A road transport minimum standards order:

(a) is not in operation during any period when a full deferral determination in relation to the road transport minimum standards order is in operation; and

(b) is in operation during any period when a part deferral determination is in operation in relation to the road transport minimum standards order.

Note: Although a road transport minimum standards order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536KQN Applications for a suspension determination for a road transport minimum standards order

(1) An application may be made to the FWC for a determination (a suspension determination) under subsection 536KQP(1) in relation to a road transport minimum standards order.

(2) An application may be made under subsection (1) by any of the following:

(a) an organisation that is entitled to represent the industrial interests of one or more regulated road transport contractors covered by the road transport minimum standards order;

(b) an organisation that is entitled to represent the industrial interests of one or more of the road transport businesses covered by the road transport minimum standards order;

(c) a road transport business covered by the road transport minimum standards order.

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

Timing of application for full suspension determination

(3) An application for a full suspension determination in relation to a road transport minimum standards order must be made within 12 months of the day on which the order came into operation.

Timing of application for part suspension determination

(4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to a specified class—the first day on which all of the terms of the road transport minimum standards order applied to the class of person;

(b) if the part suspension determination will suspend the application of all of the terms of the road transport minimum standards order to 2 or more specified classes of persons—the day on which all of the terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to a specified class of persons—the first day on which the specified terms applied to the specified class of persons;

(d) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to 2 or more specified classes of persons—the day on which the specified terms of the road transport minimum standards order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension determination will suspend the application of specified terms of the road transport minimum standards order to all persons—the first day on which the specified terms applied to all persons.

536KQP FWC may make a determination suspending a road transport minimum standards order

(1) The FWC may, on application under subsection 536KQN(1), make a suspension determination:

(a) suspending the operation of a road transport minimum standards order; or

(b) suspending:

(i) the application of a road transport minimum standards order to a specified class or specified classes of persons; or

(ii) the application of specified terms of a road transport minimum standards order to a specified class or specified classes of persons; or

(iii) the application of specified terms of road transport minimum standards order to all persons.

Note 1: A person may also apply for a variation or revocation of a road transport minimum standards order under section 536KP.

Note 2: Judicial review of decisions of the FWC is available—see paragraph 39B(1A)(c) of the Judiciary Act 1903.

(2) A suspension determination made under paragraph (1)(a) is a full suspension determination, and a suspension determination made under paragraph (1)(b) is a part suspension determination,in relation to the road transport minimum standards order to which the suspension determination relates.

Suspension determination must specify period of suspension

(3) If the FWC makes a suspension determination in relation to a road transport minimum standards order, the suspension determination must specify the period for which the order is suspended, which:

(a) must not be a period of more than 12 months; and

(b) must not start before the day on which the determination is made.

When period of suspension ends

(4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).

(5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536KQS(2) as to whether to vary or revoke the road transport minimum standards order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the road transport minimum standards order—on the day that the determination made under subsection 536KQ(1) varying or revoking the minimum standards order comes into operation, which must not be later than 12 months after the day on which the suspension determination was made;

(b) if the FWC decides not to vary or revoke the road transport minimum standards order:

(i) 7 days after the day on which the decision is made; or

(ii) if a 7-day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.

Classes

(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.

536KQQ Decision on an application for a suspension determination in relation to a road transport minimum standards orders

(1) If an application for a suspension determination in relation to a road transport minimum standards order is made, the FWC must:

(a) consider the application as soon as practicable; and

(b) consult the Road Transport Advisory Group before making a decision on the application.

(2) The FWC may:

(a) make the suspension determination under subsection 536KQP(1); or

(b) decide not to make the suspension determination.

(3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport minimum standards order; and

(b) the significant new facts or evidence demonstrate that the road transport minimum standards order will not provide, or has not provided, an appropriate safety net of minimum standards for parties in the road transport industry, having regard to the minimum standards objective and the road transport objective.

(4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the minimum standards order have previously been made.

(5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

(6) The FWC must publish a suspension determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

(7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.

536KQR Operation of a road transport minimum standards order during suspension

A road transport minimum standards order:

(a) is not in operation during any period when a full suspension determination in relation to the road transport minimum standards order is in operation; and

(b) is in operation during any period when a part suspension determination is in operation in relation to the road transport minimum standards order.

Note: Although a road transport minimum standards order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

Subdivision C — FWC must consider and decide whether or not to vary or revoke a deferred or suspended minimum standards order

536KQS FWC must consider whether to vary or revoke a minimum standards order that has been deferred or suspended

(1) This section applies if:

(a) the Minister makes a deferral declaration or a suspension declaration in relation to a minimum standards order; or

(b) the FWC makes a deferral determination or a suspension determination in relation to a road transport minimum standards order.

(2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the minimum standards order. The FWC must:

(a) vary the minimum standards order under subsection 536KQ(1); or

(b) revoke the minimum standards order under subsection 536KQ(1); or

(c) decide not to vary or revoke the minimum standards order.

General preconditions for variation or revocation

(3) The FWC:

(a) must not vary or revoke the minimum standards order unless there has been genuine engagement with the parties to be covered; and

(b) in the case of a road transport minimum standards order—must not vary or revoke the road transport minimum standards order unless the Road Transport Advisory Group has been consulted; and

(c) in the case of a road transport minimum standards order—must have regard to the commercial realities of the road transport industry; and

(d) in the case of a road transport minimum standards order—must be satisfied that the variation or revocation of the minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and

(e) in the case of an employee-like worker minimum standards order—must have regard to choice and flexibility in working arrangements.

Special preconditions for variation or revocation: road transport minimum standards order

(4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3B of this Part in relation to the variation or revocation.

Special preconditions for variation or revocation: employee-like worker minimum standards order

(5) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke an employee-like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 3C of this Part in relation to the variation or revocation.

Publication requirements

(6) The FWC must publish notice of the FWC's decision under subsection (2) on the FWC's website and by any other means the FWC considers appropriate.

End of suspension period does not affect obligations under this section

(7) The end of a period of suspension of a minimum standards order under subsection 536KQD(4) or (5) or 536KQP(4) or (5) does not affect the FWC's obligation to consider whether or not to vary or revoke the minimum standards order.

Division 3B — Consultation before varying or revoking road transport minimum standards order after deferral

536KQT FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport minimum standards order

(1) Before deciding to vary or revoke a road transport minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:

(a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the road transport minimum standards order; and

(b) if the proposal is to vary the road transport minimum standards order—publish a draft of the road transport minimum standards order as proposed to be varied.

(2) The FWC must publish the notice of intent and the draft of the road transport minimum standards order as proposed to be varied (if applicable) on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

536KQU Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport minimum standards order

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a).

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of a road transport minimum standards order in relation to which a notice of intent has been published under paragraph 536KQT(1)(a), is:

(a) a person or body likely to be affected by the proposed variation or revocation; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to the following:

(a) a draft road transport minimum standards order as proposed to be varied;

(b) a proposed revocation of a road transport minimum standards order.

536KQV Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft road transport minimum standards order as proposed to be varied.

(2) If changes proposed to be made under subsection (1) are significant, the FWC must:

(a) decide not to vary the road transport minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under subsection 536KQT(1)(a) in relation to the revised draft road transport minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KQU in relation to the revised draft road transport minimum standards order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).

Division 3C — Consultation process before varying or revoking employee-like worker minimum standards orders after deferral

536KQW FWC to prepare and publish a notice relating to a proposed variation or revocation of an employee-like worker minimum standards order

(1) Before deciding to vary or revoke an employee-like worker minimum standards order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:

(a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the employee-like worker minimum standards order; and

(b) if the proposal is to vary the employee-like worker minimum standards order—publish a draft of the proposed employee-like worker minimum standards order as proposed to be varied.

(2) The FWC must publish the notice of intent and the draft of the employee-like worker minimum standards order as proposed to be varied (if applicable) on the FWC's website and by any other means the FWC considers appropriate.

536KQX Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of an employee-like worker minimum standards order

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of an employee-like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), having regard to the unique nature of digital platform work.

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of an employee-like worker minimum standards order in relation to which a notice of intent has been published under paragraph 536KQW(1)(a), is:

(a) a person or body likely to be affected by the proposed variation or revocation; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to the following:

(a) a draft employee-like worker minimum standards order as proposed to be varied;

(b) a proposed revocation of an employee-like worker minimum standards order.

536KQY Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft employee-like worker minimum standards order as proposed to be varied.

(2) If changes proposed to be made under subsection (1) are significant, the FWC must:

(a) decide not to vary the employee-like worker minimum standards order based on the draft; and

(b) publish a subsequent notice of intent under paragraph 536KQW(1)(a) in relation to the revised draft employee-like worker minimum standards order, and publish the revised draft; and

(c) follow the process set out in section 536KQX in relation to the revised draft employee-like worker minimum standards order (with the period of consultation under that section to be a period that the FWC is satisfied is reasonable having regard to the unique nature of digital platform work).

(128) JLN/Ind (Pocock) (11) [sheet 2370]

Schedule 1, item 249, page 111 (line 28), after "business", insert "that is included in a class of regulated businesses".

(129) JLN/Ind (Pocock) (12) [sheet 2370]

Schedule 1, item 249, page 112 (after line 4), after subsection 536KS(2), insert:

(2A) An application for the making of minimum standards guidelines must specify the class of regulated businesses to be covered by the guidelines.

(130) JLN/Ind (Pocock) (13) [sheet 2370]

Schedule 1, item 249, page 112 (line 6), after "subsection (2)", insert "or (2A)".

(131) Govt (30) [sheet ZC237]

Schedule 1, item 249, page 112 (lines 11 to 16), omit subsection 536KT(1), substitute:

(1) This section applies to a decision to make or vary, or not to make or vary, employee-like worker guidelines, other than a decision of the FWC to refuse to consider an application to make or vary such guidelines.

(132) Govt (6) [sheet ZB259]

Schedule 1, item 249, page 116 (line 1) to page 117 (line 11), omit Division 5.

(133) Govt (31) [sheet ZC237]

Schedule 1, item 249, page 119 (line 17), after "services contract", insert ", or a series of services contracts,".

(134) Govt (32) [sheet ZC237]

Schedule 1, item 249, page 119 (line 18), omit "12", substitute "6".

(135) Govt (33) [sheet ZC237]

Schedule 1, item 249, page 122 (after line 8), after subsection 536LJ(2), insert:

(2A) Before the Minister makes a code under subsection (1), the Minister must be satisfied that there has been such public consultation in relation to the development of the code as the Minister considers appropriate.

(2B) The Minister may, by legislative instrument, vary or revoke the Digital Labour Platform Deactivation Code.

(2C) Before the Minister varies or revokes the Digital Labour Platform Deactivation Code under subsection (2B), the Minister must be satisfied that there has been such public consultation in relation to the variation or revocation as the Minister considers appropriate.

(2D) Subsection (2C) does not apply in relation to a variation if the Minister considers the variation is minor or technical.

(136) Govt (34) [sheet ZC237]

Schedule 1, item 249, page 124 (line 19), omit "digital platform", substitute "digital labour platform".

(137) Govt (35) [sheet ZC237]

Schedule 1, item 249, page 139 (line 4), omit ", with the consent of the other entity,".

(138) Govt (36) [sheet ZC237]

Schedule 1, item 249, page 139 (lines 6 and 7), omit subsection 536MP(2), substitute:

(2) If an application is made under subsection (1), the FWC must deal with the dispute (other than by arbitration).

Note: For the purposes of this section, the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may dismiss an application under subsection (1) if the FWC is satisfied that there are no reasonable prospects of the negotiating entities for the proposed collective agreement making a collective agreement.

Note: For another power of the FWC to dismiss an application, see section 587.

(139) Govt (37) [sheet ZC237]

Schedule 1, item 249, page 141 (line 4), omit "subsection (2)", substitute "subsections (2), (3) and (3A)".

(140) Govt (38) [sheet ZC237]

Schedule 1, item 249, page 141 (after line 19), after subsection 536MS(3), insert:

(3A) The FWC must be satisfied that the operation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.

(141) Govt (39) [sheet ZC237]

Schedule 1, item 249, page 142 (line 32), omit "section 536MT", substitute "section 536MT and subsection (1A) of this section".

(142) Govt (40) [sheet ZC237]

Schedule 1, item 249, page 142 (after line 33), after subsection 536MU(1), insert:

(1A) The FWC must be satisfied that variation of the agreement would not be contrary to the public interest, taking into account the object of this Part set out in section 536MJ.

(143) Govt (12) [sheet ZC235]

Schedule 1, item 249, page 149 (after line 16), after Chapter 3A, insert:

Chapter 3B — Minimum standards for persons in a road transport contractual chain

Part 3B-1 — Core provisions for this Chapter

Division 1 — Introduction

536NL Guide to this Part

This Part is about the coverage and operation of the provisions of this Chapter.

Division 2 sets out when road transport contractual chain orders and road transport contractual chain guidelines cover persons in a road transport contractual chain.

Division 3 specifies the rules relating to the interaction of the provisions of this Chapter with State and Territory laws.

536NM Meaning of employee and employer

In this Part, employee and employer have their ordinary meanings.

536NN FWC to have regard to minimum standards objective

The FWC must have regard to the minimum standards objective in performing a function or exercising a power under this Chapter.

Note: The FWC must also have regard to the road transport objective as required by section 40D.

Division 2 — Provisions relating to coverage and operation of road transport contractual chain orders and road transport contractual chain guidelines

Subdivision A — Coverage and operation of road transport contractual chain orders and guidelines

536NP Contravening a road transport contractual chain order

A personmust not contravene a term of a road transport contractual chain order.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A person does not contravene a term of a road transport contractual chain order unless the order applies to the person: see subsection 536NQ(1).

536NQ The significance of a road transport contractual chain order applying to a person

(1) A road transport contractual chain order does not impose obligations on a person, and a person does not contravene a term of a road transport contractual chain order, unless the order applies to the person.

(2) A road transport contractual chain order does not give a person an entitlement unless the order applies to the person.

536NR When a road transport contractual chain order applies to a person

When a road transport contractual chain order applies to a regulated road transport contractor or a road transport employee-like worker

(1) A road transport contractual chain order applies to a regulated road transport contractor or a road transport employee-like worker in a road transport contractual chain if:

(a) the road transport contractual chain order covers the regulated road transport contractor or road transport employee-like worker; and

(b) the road transport contractual chain order is in operation; and

(c) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the regulated road transport contractor or road transport employee-like worker.

When a road transport contractual chain order applies to other persons in a road transport contractual chain

(2) A road transport contractual chain order applies to a person in a road transport contractual chain, other than a regulated road transport contractor or a road transport employee-like worker, if:

(a) the road transport contractual chain order covers the person; and

(b) a regulated road transport contractor or a road transport employee-like worker to whom the road transport contractual chain order applies, or an employee, performs work for the person; and

(c) the road transport contractual chain order is in operation; and

(d) no other provision of this Act provides, or has the effect, that the road transport contractual chain order does not apply to the person.

536NS When a road transport contractual chain order covers a person in a road transport contractual chain

(1) A road transport contractual chain order covers a person in a road transport contractual chain if the order is expressed to cover the person.

Effect of other provisions of this Act, FWC orders or court orders on coverage

(2) A road transport contractual chain order also covers a person in a road transport contractual chain if any of the following provides, or has the effect, that the order covers the person:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

(3) Despite subsections (1) and (2), a road transport contractual chain order does not cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the order does not cover the person:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

Road transport contractual chain orders that have ceased to operate

(4) Despite subsections (1) and (2), a road transport contractual chain order that has ceased to operate does not cover a person in a road transport contractual chain.

536NT When a road transport contractual chain order is in operation

When a road transport contractual chain order comes into operation

(1) A road transport contractual chain order comes into operation on the day specified in the order.

(2) The specified day must not be earlier than the day on which the road transport contractual chain order is made.

(3) The specified day must not be earlier than 12 months after the relevant notice of intent for the order was published.

(4) Despite subsection (3), the specified day may be a day not earlier than 6 months after the relevant notice of intent for the order was published, if the FWC is satisfied that the circumstances urgently require it.

When a determination varying or revoking a road transport contractual chain order comes into operation

(5) A determination varying or revoking a road transport contractual chain order comes into operation on the day specified in the determination.

(6) The specified day must not be earlier than the day on which the determination is made.

Road transport contractual chain orders operate until revoked

(7) A road transport contractual chain order continues in operation until it is revoked.

Notice of intent

(8) The relevant notice of intent for a road transport contractual chain order is the notice of intent published under subsection 536PG(1) at the same time as the draft of the road transport contractual chain order was published.

536NU When road transport contractual chain guidelines cover a person in a road transport contractual chain

(1) Road transport contractual chain guidelines cover a person in a road transport contractual chain if the guidelines are expressed to cover the person.

Effect of other provisions of this Act, FWC orders or court orders on coverage

(2) Road transport contractual chain guidelines also cover a person in a road transport contractual chain if any of the following provides, or has the effect, that the guidelines cover the person:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

(3) Despite subsections (1) and (2), road transport contractual chain guidelines do not cover a person in a road transport contractual chain, if any of the following provides, or has the effect, that the guidelines do not cover the person:

(a) a provision of this Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

Road transport contractual chain guidelines that have ceased to operate

(4) Despite subsections (1) and (2), road transport contractual chain guidelines that have ceased to operate do not cover a person in a road transport contractual chain.

536NV When road transport contractual chain guidelines are in operation

When road transport contractual chain guidelines come into operation

(1) Road transport contractual chain guidelines come into operation on the day specified in the guidelines.

(2) The specified day must not be earlier than the day on which the road transport contractual chain guidelines are made.

When a determination varying or revoking road transport contractual chain guidelines comes into operation

(3) A determination varying or revoking road transport contractual chain guidelines comes into operation on the day specified in the determination.

(4) The specified day must not be earlier than the day on which the determination is made.

Road transport contractual chain guidelines operate until revoked

(5) Road transport contractual chain guidelines continue in operation until they are revoked.

Division 3 — Exclusion of certain State and Territory laws

536NW Exclusion of certain State and Territory laws

(1) For the purposes of this Chapter, the rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:

(a) take or deem the person to be an employer or employee, or otherwise treat the person as if the person were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for the person to be so taken, deemed or treated);

(b) confer or impose rights, entitlements, obligations or liabilities on the person in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on the person);

(c) without limiting paragraphs (a) and (b)—expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:

(i) make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the services contract;

(ii) make an order or determination (however described) amending or varying all or part of the services contract.

Note 1: For the meaning of workplace relations matter, see section 536NX.

Note 2: For the meaning of unfairness ground, see section 536NY.

(2) The rights, entitlements, obligations and liabilities of a person in a road transport contractual chain are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.

(3) Subsection (1) does not apply in relation to:

(a) a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or

(b) any of the following laws:

(i) Chapter 6 of the Industrial Relations Act 1996 (NSW) (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

(ii) the Owner Drivers and Forestry Contractors Act 2005 (Vic.); or

(c) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.

(4) To avoid doubt, subsection (2) has effect even if a law specified in regulations made for the purposes of that subsection:

(a) is a law referred to in paragraph (3)(a) or (b); or

(b) deals with matters that, because of section 536NX, are not workplace relations matters.

References to State and Territory law

(5) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

536NX What are workplace relations matters

For the purposes of this Chapter, workplace relations matter has the same meaning as in section 536JQ.

536NY What is an unfairness ground

For the purposes of this Chapter, an unfairness ground in relation to a services contract has the same meaning as in section 536JR.

536NZ Interaction of road transport contractual chain orders with State and Territory laws

(1) A road transport contractual chain order prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a road transport contractual chain order applies subject to the following:

(a) a law of a State or Territory specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified;

(b) a law of a State or Territory that provides for rights or remedies by reference to a law described in paragraph (a).

References to State and Territory law

(3) Without limiting any other provision of this Act, a reference in this section to a law of a State or Territory:

(a) includes a reference to a regulation, rule or other instrument (however described) made pursuant to, or for the purposes of, a law of a State or Territory; and

(b) is a reference to a law of a State or Territory as in force from time to time.

536P Authorisation of conduct for the purposes of the Competition and Consumer Act 2010

Conduct in accordance with order or guidelines

(1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, and the Competition Code within the meaning of that Act, anything done in accordance with a road transport contractual chain order or road transport contractual chain guidelines by a person or entity covered by the order or guidelines is specified in and specifically authorised by this Act.

Certain conduct not protected

(2) Despite subsection (1), conduct referred to in that subsection is not specified in or specifically authorised by this Act if the conduct is:

(a) making a contract or arrangement, or arriving at an understanding, that is or contains a cartel provision that satisfies the purpose condition in either paragraph 45AD(3)(a) or (b) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act; or

(b) boycott conduct within the meaning of subsection 87AA(2) of the Competition and Consumer Act 2010 or the Competition Code within the meaning of that Act.

Part 3B-2 — Minimum standards for persons in a road transport contractual chain

Division 1¬¬ — Introduction

536PB Guide to this Part

This Part is about setting minimum standards for persons in a road transport contractual chain.

Division 2 empowers the FWC to make road transport contractual chain orders, which set minimum standards to which certain regulated road transport contractors, road transport employee-like workers and other persons in a road transport contractual chain are entitled in relation to certain matters.

Divisions 3 and 4 deal with deferral and suspension of road transport contractual chain orders.

Division 5 empowers the FWC to make road transport contractual chain guidelines for persons in a road transport contractual chain.

536PC Meaning of employee and employer

In this Part, employee and employer have their ordinary meanings.

Division 2 — Road transport contractual chain orders

Subdivision A — General matters

536PD Road transport contractual chain orders

(1) The FWC may make an order (a road transport contractual chain order) that sets standards for regulated road transport contractors, road transport employee-like workers and other persons in a road transport contractual chain.

Note: The FWC must be constituted by an Expert Panel for the purposes of making a road transport contractual chain order (see subsection 617(10B)).

(2) A road transport contractual chain order cannot confer rights or impose obligations on a person in the capacity of an employee.

(3) The FWC may make a road transport contractual chain order under this section:

(a) on its own initiative; or

(b) on application under subsection 536PE(1).

(4) The FWC must not make a road transport contractual chain order that covers road transport employee-like workers unless the FWC considers it appropriate.

536PE Applications for road transport contractual chain orders

(1) Any of the following may apply to the FWC for the making of a road transport contractual chain order:

(a) an organisation that is entitled to represent the industrial interests of one or more persons in a road transport contractual chain;

(b) a regulated business in a road transport contractual chain;

(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain;

(d) the Minister;

(e) a person or body prescribed by the regulations.

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

Matters to be specified in an application

(2) An application for the making of a road transport contractual chain order must specify the classes of persons in a road transport contractual chain to be covered by the order.

(3) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

Subdivision B — Matters relating to road transport contractual chain orders

536PF Particular matters FWC must take into account in making a decision on a road transport contractual chain order

(1) This section applies if:

(a) an application is made for a road transport contractual chain order under subsection 536PE(1) or for a variation of a road transport contractual chain order under section 536PS; or

(b) the FWC is considering making or varying a road transport contractual chain order on its own initiative.

(2) The FWC:

(a) must not make or vary the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and

(b) must not make or vary the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and

(c) must not make or vary the road transport contractual chain order unless the consultation process set out in Subdivision C of this Division has been followed; and

(d) in deciding whether to make or vary the road transport contractual chain order, must have regard to the commercial realities of the road transport industry, including commercial practices in relation to part load, mixed load, no load, multi-leg and return trips; and

(e) must not make or vary the road transport contractual chain order unless the FWC is satisfied that making or varying the road transport contractual chain order will not unduly affect the viability and competitiveness of road transport businesses, owner drivers or other similar persons; and

(f) in deciding whether to make or vary the road transport contractual chain order, must take into account any current or proposed road transport contractual chain orders and any current or proposed minimum standards orders; and

(g) must take reasonable steps to ensure that the coverage of the road transport contractual chain order is clear.

Subdivision C — Consultation process for road transport contractual chain orders

536PG FWC to prepare and publish a draft of a road transport contractual chain order

(1) Before making a road transport contractual chain order, the FWC must:

(a) publish a notice (a notice of intent) stating that the FWC proposes to make a road transport contractual chain order; and

(b) publish a draft of the proposed road transport contractual chain order.

(2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order on the FWC's website and by any other means the FWC considers appropriate.

536PH Affected entities to have a reasonable opportunity to make submissions on a draft road transport contractual chain order

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the draft of a road transport contractual chain order published under paragraph 536PG(1)(b).

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity, in relation to a draft road transport contractual chain order published under paragraph 536PG(1)(b), is:

(a) a person or body likely to be affected by the making of a road transport contractual chain order based on the draft; or

(b) a person or body prescribed by the regulations, or included in a class prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to a draft road transport contractual chain order.

536PJ Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order.

(2) If changes made under subsection (1) are significant, the FWC must:

(a) decide not to make the road transport contractual chain order based on the draft; and

(b) publish a subsequent notice of intent under paragraph 536PG(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and

(c) follow the process set out in section 536PH in relation to the revised draft road transport contractual chain order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).

(3) Despite paragraph (2)(c), the FWC may reduce the consultation period mentioned in that paragraph to a period not shorter than 6 months if the FWC is satisfied that the circumstances urgently require it.

536PK Decision not to make order based on the draft

The FWC may decide that no road transport contractual chain order is to be made based on the draft. If the FWC does so, the FWC must publish notice of the decision on its website and by any other means the FWC considers appropriate.

Subdivision D — Decisions on road transport contractual chain orders and related matters

536PL Decisions on applications for road transport contractual chain orders

(1) If an application for a road transport contractual chain order is made to the FWC under subsection 536PE(1), the FWC may decide to:

(a) refuse to consider the application; or

(b) make a road transport contractual chain order under subsection 536PD(1); or

(c) not make a road transport contractual chain order; or

(d) if the FWC considers it appropriate to do so, instead make road transport contractual chain guidelines under section 536QP, as if the application had been an application under subsection 536QQ(1) for road transport contractual chain guidelines in relation to the persons in a road transport contractual chain covered by the application under subsection 536PE(1).

(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).

536PM Terms that must be included in a road transport contractual chain order

Terms relating to coverage

(1) A road transport contractual chain order must include terms setting out in accordance with this section:

(a) the work in the road transport industry covered by the road transport contractual chain order; and

(b) the persons in a road transport contractual chain covered by the road transport contractual chain order.

(2) A road transport contractual chain order must be expressed to cover persons in a road transport contractual chain, including specified regulated road transport contractors or road transport employee-like workers.

(3) For the purposes of subsection (2):

(a) persons in a road transport contractual chain other than regulated road transport contractors or road transport employee-like workers may be specified by name or by inclusion in a specified class or specified classes; and

(b) regulated road transport contractors and road transport employee-like workers must be specified by inclusion in a specified class or specified classes.

(4) Without limiting the way in which a class may be described for the purposes of subsection (3), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

536PN Road transport contractual chain order must include term about interaction with minimum standards orders

A road transport contractual chain order must include a provision that specifies the extent to which it prevails over, or is subject to, a minimum standards order to the extent of any inconsistency, and the road transport contractual chain order and the minimum standards order have effect according to the provision included in the road transport contractual chain order.

536PP Term about settling disputes must be included in a road transport contractual chain order

A road transport contractual chain order must include a term that provides a procedure for settling disputes about any matters arising under the order.

536PQ Terms that may be included in a road transport contractual chain order

(1) A road transport contractual chain order may also include terms about any of the following matters:

(a) payment times;

(b) fuel levies;

(c) rate reviews;

(d) termination, including one way termination for convenience;

(e) cost recovery.

(2) Subsection (1) does not limit the terms that may be included in a road transport contractual chain order.

536PR Terms that must not be included in a road transport contractual chain order

(1) A road transport contractual chain order must not include terms about any of the following matters:

(a) overtime rates;

(b) rostering arrangements;

(c) a term that would change the form of the engagement or the status of a regulated road transport contractor or a road transport employee-like worker covered by the road transport contractual chain order including, but not limited to, a term that deems a regulated road transport contractor or a road transport employee-like worker to be an employee;

(d) a matter relating to work health and safety that is otherwise comprehensively dealt with by a law of the Commonwealth, a State or a Territory;

(e) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.

(2) A road transport contractual chain order must not include terms about any of the following matters:

(a) a matter relating to road transport that is otherwise comprehensively dealt with:

(i) by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld); or

(ii) by another law of the Commonwealth, a State or a Territory;

(b) a matter prescribed by the regulations, or included in a class of matter prescribed by the regulations.

(3) For the purposes of paragraph (1)(d):

(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by a law of the Commonwealth, a State or a Territory; and

(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which that paragraph does, or does not, not apply.

(4) For the purposes of paragraph (2)(b):

(a) the regulations may specify that a particular matter, or a matter included in a class of matters, is, or is not, dealt with comprehensively by the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) or another law of the Commonwealth, a State or a Territory; and

(b) the regulations may prescribe one or more laws of the Commonwealth, a State or a Territory to which subparagraph (2)(a)(ii) does, or does not, not apply.

536PS Applications to vary or revoke road transport contractual chain orders

Any of the following may apply to the FWC for a determination varying or revoking a road transport contractual chain order:

(a) an organisation that is entitled to represent the industrial interests of one or more of the persons in the road transport contractual chain to which the order relates or to whom the order as proposed to be varied would relate;

(b) a regulated business in the road transport contractual chain to which the order relates or to which the order as proposed to be varied would relate;

(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain to which the order relates;

(d) the Minister;

(e) a person or body prescribed by the regulations.

536PT FWC may vary or revoke road transport contractual chain orders

(1) The FWC may make a determination varying or revoking a road transport contractual chain order if the FWC is satisfied that making the determination is consistent with the minimum standards objective and the road transport objective.

(2) The FWC may make a determination varying a road transport contractual chain order in such a way that not all of the elements of the variation sought in an application under section 536PS are implemented, including by refusing to make a variation to the extent that it would result in the order covering persons who are not regulated road transport contractors or road transport employee-like workers.

(3) The FWC may make a determination varying a road transport contractual chain order to remove an ambiguity or uncertainty or to correct an error.

(4) The FWC may make a determination varying or revoking a road transport contractual chain order:

(a) on its own initiative; or

(b) on application under section 536PS.

(5) The FWC must not vary or revoke a road transport contractual chain order that covers road transport employee-like workers, or in such a way that it would begin to cover or cease to cover road transport employee-like workers, unless the FWC considers it appropriate.

(6) The FWC may also make a determination under subsection (1) varying or revoking a road transport contractual chain order to give effect to a decision under paragraph 536QK(2)(a) or (b) to vary or revoke the road transport contractual chain order.

Note: Subsection 536QK(2) requires the FWC to consider whether to vary or revoke a road transport contractual chain order after a deferral declaration, a deferral determination, a suspension declaration or a suspension determination is made in relation to the order.

(7) A road transport contractual chain order that is not in operation can only be revoked or varied under the process set out in Divisions 3 and 4.

Division 3 — Deferral and suspension of road transport contractual chain orders

Subdivision A — Ministerial declarations to defer or suspend road transport contractual chain orders

536PU Minister may make a declaration deferring the operation or application of a road transport contractual chain order

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a deferral declaration) that defers:

(a) the coming into operation of a road transport contractual chain order; or

(b) the application of:

(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(iii) specified terms of a road transport contractual chain order to all persons.

(2) A deferral declaration made under paragraph (1)(a) is a full deferral declaration, and a deferral declaration made under paragraph (1)(b) is a part deferral declaration,in relation to the road transport contractual chain order to which the deferral declaration relates.

(3) A deferral declaration in relation to a road transport contractual chain order:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

(5) The Secretary of the Department must publish a deferral declaration on the Department's website as soon as practicable after the deferral declaration is made.

536PV Limitations on making a deferral declaration

No deferral of road transport contractual chain order that is in operation

(1) The Minister must not make a deferral declaration in relation to a road transport contractual chain order that has already come into operation.

Only one full deferral declaration is permitted etc.

(2)The Minister:

(a) may only make one full deferral declaration in relation to a particular road transport contractual chain order; and

(b) must not make a full deferral declaration in relation to a particular road transport contractual chain order if a deferral determination (whether a full deferral determination or a part deferral determination) has previously been made by the FWC in relation to the road transport contractual chain order.

Note: The FWC may make deferral determinations in relation to road transport contractual chain orders under Subdivision B of this Division.

More than one part deferral declaration is permitted

(3) Subject to subsection (4), the Minister may make more than one part deferral declaration in relation to a particular road transport contractual chain order.

(4) If more than one part deferral declaration or part deferral determination is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536QC(3), a later part deferral declaration must not have the effect of deferring, or purporting to defer, the application of a term or terms to any person:

(a) to whom the terms already apply when the later part deferral declaration is made; or

(b) in relation to whom the application of the terms has previously been deferred.

536PW Operation of a road transport contractual chain order during deferral

A road transport contractual chain order:

(a) is not in operation during any period when a full deferral declaration in relation to the road transport contractual chain order is in operation; and

(b) is in operation during any period when a part deferral declaration in relation to the road transport contractual chain order is in operation.

Note: Although a road transport contractual chain order is in operation when a part deferral declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536PX Minister may make a declaration suspending a road transport contractual chain order

(1) If the Minister considers it is in the public interest to do so, the Minister may, by notifiable instrument, make a declaration (a suspension declaration):

(a) suspending the operation of a road transport contractual chain order; or

(b) suspending the application of:

(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(iii) specified terms of a road transport contractual chain order to all persons.

(2) A suspension declaration made under paragraph (1)(a) is a full suspension declaration, and a suspension declaration made under paragraph (1)(b) is a part suspension declaration,in relation to the road transport contractual chain order to which the suspension declaration relates.

Suspension declaration must specify period of suspension

(3) A suspension declaration must specify the period of the suspension, which:

(a) must not be longer than 12 months; and

(b) must not start before the day on which the suspension declaration is made.

When period of suspension ends

(4) Subject to subsection (5), a period of suspension specified in a suspension declaration ends immediately after the end of the period specified in the suspension declaration under subsection (3).

(5) If a period of suspension has not already ended under subsection (3) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than 12 months after the day on which the suspension declaration was made;

(b) if the FWC decides not to vary or revoke the road transport contractual chain order:

(i) 7 days after the day on which the decision is made; or

(ii) if a 7-day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.

Classes

(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

Orders

(7) If the Minister makes a suspension declaration, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

Publication

(8) The Secretary of the Department must publish a suspension declaration on the Department's website as soon as practicable after the suspension declaration is made.

Accrued rights, etc.

(9) The making of a suspension declaration does not affect any right or liability that a person acquired, accrued or incurred before the suspension declaration is made.

536PY Suspension declaration must be made within 12 months of certain dates

Full suspension declaration timing

(1) A full suspension declaration in relation to a road transport contractual chain order must be made within 12 months of the day on which the road transport contractual chain order came into operation.

Part suspension declaration timing

(2) A part suspension declaration in relation to a road transport contractual chain order must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to a specified class of persons—the day on which all of the terms of the road transport contractual chain order first applied to the specified class of persons;

(b) if the part suspension declaration suspends the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to a specified class of persons—the day on which the specified terms first applied to the specified class of persons;

(d) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension declaration suspends the application of specified terms of the road transport contractual chain order to all persons—the day on which the specified terms first applied to all persons.

536PZ Operation of a road transport contractual chain order during suspension

A road transport contractual chain order:

(a) is not in operation during any period when a full suspension declaration in relation to the road transport contractual chain order is in operation; and

(b) is in operation during any period when a part suspension declaration in relation to the road transport contractual chain order is in operation.

Note: Although a road transport contractual chain order is in operation during a period when a part suspension declaration is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536Q Consultation requirements

The Minister is not required to consult any person or body before making a deferral declaration or a suspension declaration.

Subdivision B — FWC may defer or suspend road transport contractual chain orders

536QA Applications for a deferral determination for a road transport contractual chain order

(1) An application may be made to the FWC for a determination under subsection 536QB(1) (a deferral determination) in relation to a road transport contractual chain order.

(2) An application may be made under subsection (1) by any of the following:

(a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;

(b) a regulated business in the road transport contractual chain;

(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;

(d) a person or body prescribed by the regulations.

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

(3) An application for a deferral determination must not be made in relation to a road transport contractual chain order that has already come into operation.

Note: If the road transport contractual chain order concerned comes into operation before the FWC considers the application, the FWC may treat it as a suspension application: see subsection 536QD(2).

536QB FWC may make a determination deferring the operation or application of a road transport contractual chain order

(1) The FWC may, on application under subsection 536QA(1), make a deferral determination:

(a) that defers the coming into operation of a road transport contractual chain order; or

(b) that defers the application of:

(i) all of the terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(ii) specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(iii) specified terms of a road transport contractual chain order to all persons.

(2) A deferral determination made under paragraph (1)(a) is a full deferral determination, and a deferral determination made under paragraph (1)(b) is a part deferral determination,in relation to the road transport contractual chain order to which the deferral determination relates.

(3) A deferral determination in relation to a road transport contractual chain order:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation on the day on which the FWC decides under subsection 536QK(2) whether or not to vary or revoke the road transport contractual chain order.

(4) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.

536QC Limitations on making a deferral determination

No deferral of road transport contractual chain order that is in operation

(1) The FWC must not make a deferral determination in relation to a road transport contractual chain order that has already come into operation.

Only one full deferral determination is permitted, etc.

(2)The FWC:

(a) may only make one full deferral determination in relation to a particular road transport contractual chain order; and

(b) must not make a full deferral determination in relation to a particular road transport contractual chain order if a deferral declaration (whether a full deferral declaration or a part deferral declaration) has previously been made by the Minister in relation to the road transport contractual chain order.

Note: The Minister may make deferral declarations in relation to road transport contractual chain orders under Subdivision A of this Division.

More than one part deferral determination is permitted

(3) Subject to subsection (4), the FWC may make more than one part deferral determination in relation to a particular road transport contractual chain order.

(4) If more than one part deferral determination or part deferral declaration is made in relation to the same road transport contractual chain order as permitted by subsection (3) of this section or subsection 536PV(3), a later part deferral determination must not have the effect of deferring, or purporting to defer, the application of a term to any person or class of persons:

(a) to whom the term already applies when the later part deferral determination is made; or

(b) in relation to whom the application of the terms has previously been deferred.

536QD Decision on an application for a deferral determination in relation to a road transport contractual chain order

(1) If an application for a deferral determination in relation to a road transport contractual chain order is made, the FWC must:

(a) consider the application as soon as practicable; and

(b) consult the Road Transport Advisory Group before making a decision on the application.

(2) If the road transport contractual chain order concerned comes into operation before the FWC makes a decision on the application, the FWC may treat the application as if it were an application for a suspension determination.

(3) The FWC may:

(a) make the deferral determination under subsection 536QB(1); or

(b) decide not to make the deferral determination.

(4) The FWC must make the deferral determination if, and must not make the deferral determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and

(b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.

(5) In considering whether the FWC is satisfied as mentioned in subsection (4), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order concerned have previously been made.

(6) The FWC must publish a deferral determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

536QE Operation of a road transport contractual chain order during deferral

A road transport contractual chain order:

(a) is not in operation during any period when a full deferral determination in relation to the road transport contractual chain order is in operation; and

(b) is in operation during any period when a part deferral determination is in operation in relation to the road transport contractual chain order.

Note: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

536QF Applications for a suspension determination for a road transport contractual chain order

(1) An application may be made to the FWC for a determination (a suspension determination) under subsection 536QG(1) in relation to a road transport contractual chain order.

(2) An application may be made under subsection (1) by any of the following:

(a) an organisation that is entitled to represent the industrial interests of one or more persons in the road transport contractual chain;

(b) a regulated business in the road transport contractual chain;

(c) a person who is a primary party to the first contract or arrangement in the road transport contractual chain;

(d) a person or body prescribed by the regulations.

Note: An Expert Panel can hear applications under this Act for the road transport industry together: see subsection 582(4).

Timing of application for full suspension determination

(3) An application for a full suspension determination in relation to a road transport contractual chain order must be made within 12 months of the day on which the order came into operation.

Timing of application for part suspension determination

(4) An application for a part suspension determination must be made within 12 months of whichever of the following days is applicable:

(a) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to a specified class—the first day on which all of the terms of the road transport contractual chain order applied to the class of person;

(b) if the part suspension determination will suspend the application of all of the terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which all of the terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if all of the terms of the order did not apply to all of the specified classes on that day);

(c) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to a specified class of persons—the first day on which the specified terms applied to the specified class of persons;

(d) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to 2 or more specified classes of persons—the day on which the specified terms of the road transport contractual chain order first applied to at least one of the specified classes of persons (even if the order did not apply to all of the specified classes on that day);

(e) if the part suspension determination will suspend the application of specified terms of the road transport contractual chain order to all persons—the first day on which the specified terms applied to all persons.

536QG FWC may make a determination suspending a road transport contractual chain order

(1) The FWC may, on application under subsection 536QF(1), make a suspension determination:

(a) suspending the operation of a road transport contractual chain order; or

(b) suspending:

(i) the application of a road transport contractual chain order to a specified class or specified classes of persons; or

(ii) the application of specified terms of a road transport contractual chain order to a specified class or specified classes of persons; or

(iii) the application of specified terms of road transport contractual chain order to all persons.

Note 1: A person may also apply under section 536PS for a variation or revocation of a road transport contractual chain order.

Note 2: Judicial review of decisions of the FWC is available: see paragraph 39B(1A)(c) of the Judiciary Act 1903.

(2) A suspension determination made under paragraph (1)(a) is a full suspension determination, and a suspension determination made under paragraph (1)(b) is a part suspension determination,in relation to the road transport contractual chain order to which the suspension determination relates.

Suspension determination must specify period of suspension

(3) If the FWC makes a suspension determination in relation to a road transport contractual chain order, the suspension determination must specify the period for which the order is suspended, which:

(a) must not be a period of more than 12 months; and

(b) must not start before the day on which the determination is made.

When period of suspension ends

(4) Subject to subsection (5), a period of suspension specified in a suspension determination ends immediately after the end of the period specified in the suspension determination under subsection (3).

(5) If the period of suspension has not already ended under subsection (4) when the FWC makes a decision under subsection 536QK(2) as to whether to vary or revoke the road transport contractual chain order, the period of suspension ends on whichever of the following days is applicable:

(a) if the FWC decides to vary or revoke the road transport contractual chain order—on the day that the determination made under subsection 536PT(1) varying or revoking the road transport contractual chain order comes into operation, which must not be later than 12 months after the day on which the suspension determination was made;

(b) if the FWC decides not to vary or revoke the road transport contractual chain order:

(i) 7 days after the day on which the decision is made; or

(ii) if a 7-day period would result in the suspension lasting longer than 12 months—such shorter period as is specified in the decision, which must be a period that would result in the suspension lasting 12 months or less.

Classes

(6) Without limiting the way in which a class may be described for the purposes of subsection (1), the class may be described by reference to a particular industry or sector, or part of an industry or sector.

536QH Decision on an application for a suspension determination in relation to a road transport contractual chain order

(1) If an application for a suspension determination in relation to a road transport contractual chain order is made, the FWC must:

(a) consider the application as soon as practicable; and

(b) consult the Road Transport Advisory Group before making a decision on the application.

(2) The FWC may:

(a) make the suspension determination under subsection 536QG(1); or

(b) decide not to make the suspension determination.

(3) The FWC must make the suspension determination if, and must not make the suspension determination unless, the FWC is satisfied that:

(a) the applicant has provided significant new facts or evidence that was not available at the time the FWC decided to make the road transport contractual chain order; and

(b) the significant new facts or evidence demonstrate that the road transport contractual chain order will not provide, or has not provided, an appropriate safety net of road transport contractual chain for parties in the road transport industry, having regard to the road transport contractual chain objective and the road transport objective.

(4) In considering whether the FWC is satisfied as mentioned in subsection (3), the FWC may have regard to whether one or more previous applications for variation or revocation of the road transport contractual chain order have previously been made.

(5) If the FWC makes the suspension determination, the FWC may make any orders it considers appropriate to ensure that no person is unfairly affected by the suspension.

(6) The FWC must publish a suspension determination on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

(7) The making of a suspension determination does not affect any right or liability that a person acquired, accrued or incurred before the suspension determination is made.

536QJ Operation of a road transport contractual chain order during suspension

A road transport contractual chain order:

(a) is not in operation during any period when a full suspension determination in relation to the road transport contractual chain order is in operation; and

(b) is in operation during any period when a part suspension determination is in operation in relation to the road transport contractual chain order.

Note: Although a road transport contractual chain order is in operation during a period when a part deferral determination is in operation in relation to the order, the order as a whole will not apply to specified classes of persons, or specified terms of the order will not apply to all persons or specified classes of persons, during that period.

Subdivision C — FWC must consider and decide whether to vary or revoke a deferred or suspended road transport contractual chain order

536QK FWC must consider whether to vary or revoke a road transport contractual chain order that has been deferred or suspended

(1) This section applies if:

(a) the Minister makes a deferral declaration or a suspension declaration in relation to a road transport contractual chain order; or

(b) the FWC makes a deferral determination or a suspension determination in relation to a road transport contractual chain order.

(2) The FWC must, as soon as practicable, consider whether or not to vary or revoke the road transport contractual chain order. The FWC must:

(a) vary the road transport contractual chain order under subsection 536PT(1); or

(b) revoke the road transport contractual chain order under subsection 536PT(1); or

(c) decide not to vary or revoke the road transport contractual chain order.

General preconditions for variation or revocation

(3) The FWC:

(a) must not vary or revoke the road transport contractual chain order unless there has been genuine engagement with the parties to be covered; and

(b) in the case of a road transport contractual chain order—must not vary or revoke the road transport contractual chain order unless the Road Transport Advisory Group has been consulted; and

(c) in the case of a road transport contractual chain order—must have regard to the commercial realities of the road transport industry; and

(d) in the case of a road transport contractual chain order—must be satisfied that the variation or revocation of the road transport contractual chain order will not unduly affect the viability and competitiveness of owner drivers or other similar persons; and

(e) in the case of a road transport contractual chain order that covers road transport employee-like workers—must have regard to choice and flexibility in working arrangements.

Special preconditions for variation or revocation: road transport contractual chain order

(4) In addition to the matters mentioned in subsection (3), the FWC must not vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made unless the FWC has followed the process set out in Division 4 of this Part in relation to the variation or revocation.

Publication requirements

(5) The FWC must publish notice of the FWC's decision under subsection (2) on the FWC's website and by any other means the FWC considers appropriate.

End of suspension period does not affect obligations under this section

(6) The end of a period of suspension of a road transport contractual chain order under subsection 536PX(4) or 536QG(4) does not affect the FWC's obligation to consider whether or not to vary or revoke the road transport contractual chain order.

Division 4 — Consultation before varying or revoking road transport contractual chain order after a deferral declaration or deferral determination

536QL FWC to prepare and publish a notice relating to proposed variation or revocation of a road transport contractual chain order

(1) Before deciding to vary or revoke a road transport contractual chain order in relation to which a deferral declaration or a deferral determination has been made, the FWC must:

(a) publish a notice (a notice of intent) stating that the FWC proposes to vary or revoke the road transport contractual chain order; and

(b) if the proposal is to vary the road transport contractual chain order—publish a draft of the road transport contractual chain order as proposed to be varied.

(2) The FWC must publish the notice of intent and the draft of the road transport contractual chain order as proposed to be varied (if applicable) on the FWC's website and by any other means the FWC considers appropriate as soon as practicable after making the determination.

536QM Affected entities to have a reasonable opportunity to make submissions and comment on a proposed variation or revocation of a road transport contractual chain order

(1) The FWC must ensure that affected entities have a reasonable opportunity to make written submissions to the FWC for its consideration in relation to the proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a).

(2) The FWC must publish submissions made to the FWC.

(3) However, if a submission made by an entity includes information that is claimed by the entity to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive, the FWC:

(a) may decide not to publish the information; and

(b) may instead publish:

(i) a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

(ii) if the FWC considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

(4) The publishing of material under subsections (2) and (3) must be on the FWC's website and by any other means the FWC considers appropriate.

(5) A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

(6) For the purposes of subsection (1), an affected entity, in relation to a proposed variation or revocation of a road transport contractual chain order in relation to which a notice of intent has been published under paragraph 536QL(1)(a), is:

(a) a person or body likely to be affected by the proposed variation or revocation; or

(b) a person or body prescribed by the regulations, or belonging to a class of persons or bodies prescribed by the regulations.

(7) The FWC may, but is not required to, hold a hearing in relation to the following:

(a) a draft road transport contractual chain order as proposed to be varied;

(b) a proposed revocation of a road transport contractual chain order.

536QN Finalising draft order

(1) The FWC may make any changes it thinks appropriate to a draft road transport contractual chain order as proposed to be varied.

(2) If changes proposed to be made under subsection (1) are significant, the FWC must:

(a) decide not to vary the road transport contractual chain order based on the draft; and

(b) publish a subsequent notice of intent under paragraph 536QL(1)(a) in relation to the revised draft road transport contractual chain order, and publish the revised draft; and

(c) follow the process set out in section 536QM in relation to the revised draft road transport contractual chain order (with the period of consultation under that section to be no shorter than 12 months starting when the subsequent notice of intent and the revised draft required by paragraph (b) of this subsection were published).

Division 5 — Road transport contractual chain guidelines

536QP Road transport contractual chain guidelines

(1) The FWC may make guidelines under this section (road transport contractual chain guidelines) that set standards for regulated road transport contractors, road transport employee-like workers and other persons in a road transport contractual chain.

(2) The FWC may make road transport contractual chain guidelines under this section:

(a) on its own initiative; or

(b) on application under section 536QQ.

536QQ Applications for road transport contractual chain guidelines

(1) Any of the following may apply to the FWC for the making of road transport contractual chain guidelines:

(a) an organisation that is entitled to represent the industrial interests of one or more of the persons that would be covered by the proposed road transport contractual chain guidelines;

(b) a regulated business that would be covered by the proposed road transport contractual chain guidelines;

(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain that would be covered by the proposed road transport contractual chain guidelines;

(d) the Minister;

(e) a person or body prescribed by the regulations.

Matters to be specified in an application

(2) An application for the making of road transport contractual chain guidelines must specify the class of persons in a road transport contractual chain to be covered by the guidelines.

(3) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to a particular industry or sector, or part of an industry or sector, or particular kinds of work.

536QR Decisions on applications for road transport contractual chain guidelines

(1) If an application for road transport contractual chain guidelines is made to the FWC under subsection 536QQ(1), the FWC may decide to:

(a) refuse to consider the application; or

(b) make road transport contractual chain guidelines under subsection 536QP(1); or

(c) not make road transport contractual chain guidelines; or

(d) if the FWC considers it appropriate to do so, instead make a road transport contractual chain order under subsection 536PD(1), as if the application had been an application under subsection 536PE(1) for a road transport contractual chain order in relation to the persons covered by the application under subsection 536QQ(1).

(2) Without limiting subsection (1), the FWC may refuse to consider the application if it is not consistent with a direction of the President under subsection 582(4D) (prioritisation).

536QS Road transport contractual chain guidelines not to be made if a road transport contractual chain order is in operation

The FWC must not make road transport contractual chain guidelines that cover the same persons in a road transport contractual chain in relation to the same matters as a road transport contractual chain order that is in operation.

536QT Terms that must be included in road transport contractual chain guidelines

Road transport contractual chain guidelines must include terms setting out the same matters in relation to road transport contractual chain orders as set out in section 536PM.

536QU Terms that may be included in road transport contractual chain guidelines

Road transport contractual chain guidelines may include terms about any of the matters that may be included in road transport contractual chain orders under section 536PQ.

536QV Terms that must not be included in road transport contractual chain guidelines

Road transport contractual chain guidelines must not include terms about any of the matters that must not be included in road transport contractual chain orders as set out in section 536PR.

536QW FWC may vary or revoke road transport contractual chain guidelines

(1) The FWC may make a determination varying or revoking road transport contractual chain guidelines if the FWC is satisfied that making the determination is consistent with the road transport objective and the minimum standards objective.

(2) The FWC may make a determination varying road transport contractual chain guidelines in such a way that not all of the elements of the variation sought in an application under section 536QX are implemented, including by refusing to make a variation to the extent that it would result in the guidelines covering persons who are not in a road transport contractual chain.

(3) The FWC may make a determination varying road transport contractual chain guidelines to remove an ambiguity or uncertainty or to correct an error.

(4) The FWC may make a determination varying or revoking road transport contractual chain guidelines:

(a) on its own initiative; or

(b) on application under section 536QX.

(5) If the FWC makes a road transport contractual chain order that covers the same persons in a road transport contractual chain in relation to the same matters as road transport contractual chain guidelines, the FWC must revoke the road transport contractual chain guidelines with effect on and from the day on which the road transport contractual chain order comes into operation.

(6) If the FWC makes a road transport contractual chain order that covers some or all of the same persons in a road transport contractual chain in relation to some or all of the same matters as road transport contractual chain guidelines, the FWC must vary the road transport contractual chain guidelines so that the guidelines do not cover the persons or matters covered by the order, with effect on and from the day on which the order comes into operation.

536QX Applications to vary or revoke road transport contractual chain guidelines

Any of the following may apply to the FWC for a determination varying or revoking road transport contractual chain guidelines:

(a) an organisation that is entitled to represent the industrial interests of one or more of the persons covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;

(b) a regulated business covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;

(c) a person who is a primary party to the first contract or arrangement in a road transport contractual chain covered by the road transport contractual chain guidelines, or that would be covered by the road transport contractual chain guidelines as proposed to be varied;

(d) the Minister;

(e) a person or body prescribed by the regulations.

(144) Govt (13) [sheet ZC235]

Schedule 1, item 250, page 149 (after line 23), after paragraph 3(ca), insert:

(caa) ensuring a safety net of fair and relevant minimum terms and conditions for persons in a road transport contractual chain through enforceable road transport contractual chain orders and through road transport contractual chain guidelines; and

(145) Govt (14) [sheet ZC235]

Schedule 1, item 251, page 150 (after line 2), after paragraph 4(1)(bb), insert:

(bc) provides for minimum terms and conditions for persons in a road transport contractual chain (Chapter 3B); and

(146) Govt (15) [sheet ZC235]

Schedule 1, item 253, page 150 (after line 30), after section 6A, insert:

6B Rights and responsibilities of persons in a road transport contractual chain

(1) Chapter 3B sets out rights and responsibilities of persons in a road transport contractual chain.

(2) Part 3B-1 has the core provisions for the Chapter. It deals with compliance with road transport contractual chain orders made under the Chapter and interaction issues.

(3) Part 3B-2 is about road transport contractual chain orders and road transport contractual chain guidelines, which can be made for certain persons in a road transport contractual chain.

(147) Govt (16) [sheet ZC235]

Schedule 1, item 254, page 151 (after line 6), after paragraph (bb) of the definition of applies, insert:

(bc) in relation to a road transport contractual chain order: see section 536NR; and

(148) Govt (17) [sheet ZC235]

Schedule 1, item 256, page 151 (after line 23), after paragraph (cc) of the definition of covers, insert:

(cd) in relation to a road transport contractual chain order: see section 536NS; and

(ce) in relation to road transport contractual chain guidelines: see section 536NU; and

(149) Govt (7) [sheet ZB259]

Schedule 1, item 256A, page 151 (after line 26), after the definition of deactivated, insert:

deferral declaration, in relation to a minimum standards order: see subsection 536KQA(1).

deferral determination, in relation to a road transport minimum standards order: see subsection 536KQH(1).

(150) Govt (41) [sheet ZC237]

Schedule 1, item 256A, page 151 (line 29), omit "subsection 536LJ(1)", substitute "section 536LJ".

(151) Govt (18) [sheet ZC235]

Schedule 1, item 257, page 152 (lines 11 and 12), omit "but not including minimum standards guidelines" substitute "or a road transport contractual chain order, but not including minimum standards guidelines or road transport contractual chain guidelines".

(152) Govt (8) [sheet ZB259]

Schedule 1, item 258, page 152 (before line 16), before the definition of minimum standards guidelines, insert:

full deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).

full deferral determination, in relation to a road transport minimum standards order: see subsection 536KQJ(2).

full suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).

full suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).

(153) JLN/Ind (Pocock) (3) [sheet 2371 revised]

Schedule 1, item 258, page 152 (after line 18), after the definition of minimum standards order, insert:

opt out notice: see subsection 15AB(8).

(154) Govt (9) [sheet ZB259]

Schedule 1, item 258, page 152 (after line 18), after the definition of minimum standards order, insert:

part deferral declaration, in relation to a minimum standards order: see subsection 536KQA(2).

part deferral determination, in relation to a road transport minimum standards order:see subsection 536KQJ(2).

part suspension declaration, in relation to a minimum standards order: see subsection 536KQD(2).

part suspension determination, in relation to a road transport minimum standards order: see subsection 536KQP(2).

(155) JLN/Ind (Pocock) (4) [sheet 2371 revised]

Schedule 1, item 258, page 153 (after line 8), after the definition of road transport minimum standards order, insert:

section 15AA commencement: see subsection 15AB(8).

(156) Govt (10) [sheet ZB259]

Schedule 1, item 258, page 153 (after line 9), after the definition of services contract, insert:

suspension declaration, in relation to a minimum standards order: see subsection 536KQD(1).

suspension determination, in relation to a road transport minimum standards order: see subsection 536KQN(1).

(157) Govt (19) [sheet ZC235]

Schedule 1, item 259, page 153 (line 22), omit "contractors.", substitute "contractors; or".

(158) Govt (20) [sheet ZC235]

Schedule 1, item 259, page 153 (after line 22), after subparagraph (b)(iii) of the definition of workplace instrument in section 12, insert:

(iv) persons in a road transport contractual chain.

(159) Govt (21) [sheet ZC235]

Schedule 1, item 272, page 159 (after table item 29AE), insert:

(160) Govt (22) [sheet ZC235]

Schedule 1, item 273, page 160 (after line 14), after subsection 540(7B), insert:

Persons in a road transport contractual chain

(7C) A person in a road transport contractual chain may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

(a) the person is affected by the contravention, or will be affected by the proposed contravention; and

(b) the person is a party to a contract with another person covered by the relevant road transport contractual chain order, being a person who is alleged to have committed the contravention.

(161) Govt (23) [sheet ZC235]

Schedule 1, item 274, page 160 (after line 22), after paragraph 557(2)(od), insert:

(oe) section 536NP (which deals with contraventions of road transport contractual chain orders);

(162) Govt (24) [sheet ZC235]

Schedule 1, item 275, page 160 (after line 29), after paragraph 576(1)(md), insert:

(me) minimum standards for persons in a road transport contractual chain (Part 3B-2);

(163) Govt (25) [sheet ZC235]

Schedule 1, item 276, page 160 (line 33), omit "Chapter 3A.", substitute "Chapter 3A; and".

(164) Govt (26) [sheet ZC235]

Schedule 1, item 276, page 160 (after line 33), after paragraph 581(c), insert:

(d) adequately serves the needs of persons covered by Chapter 3B.

(165) Govt (42) [sheet ZC237]

Schedule 1, item 277, page 161 (after line 5), after paragraph 582(4)(ac), insert:

(ad) a direction about the exercise of powers under Part 3B-2 (which deals with road transport contractual chains);

(166) Govt (43) [sheet ZC237]

Schedule 1, item 279, page 161 (lines 13 and 14), omit "Part 3A-2 including, but not limited to, prioritising", substitute "Parts 3A-2 and 3B-2 including, but not limited to, prioritising types of orders under those Parts and".

(167) Govt (27) [sheet ZC235]

Schedule 1, item 281, page 161 (lines 23 and 24), omit "or minimum standards guidelines", substitute ", minimum standards guidelines, road transport contractual chain orders or road transport contractual chain guidelines".

(168) Govt (28) [sheet ZC235]

Schedule 1, item 282, page 161 (line 28), after "536KZ(3)", insert "respectively, and corrects road transport contractual chain orders and road transport contractual chain guidelines under subsections 536PT(3) and 536QW(3) respectively".

(169) Govt (29) [sheet ZC235]

Schedule 1, item 283, page 162 (after line 4), after paragraph 603(3)(gb), insert:

(gc) a decision under Part 3B-2 (which deals with road transport contractual chain orders);

(170) Govt (44) [sheet ZC237]

Schedule 1, item 288, page 162 (line 14), omit "After subsection 616(4)", substitute "Before subsection 616(5)".

(171) Govt (45) [sheet ZC237]

Schedule 1, item 288, page 162 (line 17), omit "(4A)" (first occurring), substitute "(4B)".

(172) Govt (30) [sheet ZC235]

Schedule 1, item 294, page 163 (lines 17 and 18), omit paragraph 675(2)(m), substitute:

(m) a road transport contractual chain order.

(173) Govt (31) [sheet ZC235]

Schedule 1, item 295, page 163 (line 20), after "businesses,", insert "persons in a road transport contractual chain,".

(174) Govt (32) [sheet ZC235]

Schedule 1, item 297, page 163 (lines 25 to 28), omit subsection 682(3), substitute:

(3) The Fair Work Ombudsman has the functions of:

(a) providing education, assistance and advice to regulated workers, regulated businesses and organisations, and persons in a road transport contractual chain, in relation to minimum standards guidelines and road transport contractual chain guidelines; and

(b) producing best practice guides in relation to minimum standards guidelines and road transport contractual chain guidelines.

(175) Govt (33) [sheet ZC235]

Schedule 1, item 298, page 164 (line 4), after "order", insert "or a road transport contractual chain order".

(176) Govt (34) [sheet ZC235]

Schedule 1, item 299, page 164 (after line 10), after paragraph 716(1)(fb), insert:

(fc) a term of a road transport contractual chain order;

(177) Govt (46) [sheet ZC237]

Schedule 1, item 299A, page 164 (before line 13), before Subdivision E, insert:

Subdivision DA — Actions relating to unfair deactivation or unfair termination

734BA Limitation on applications for remedy for unfair deactivation — other proceedings in progress

(1) An application under Division 5 of Part 3A-3 (unfair deactivation or unfair termination of regulated workers) in relation to deactivation of a person from a digital labour platform must not be made if other deactivation proceedings have been commenced in relation to the person and the digital labour platform, unless the other deactivation proceedings:

(a) have been discontinued by the person who commenced them; or

(b) have failed for want of jurisdiction.

(2) If an application under Division 5 of Part 3A-3 has been made in relation to deactivation of a person (the relevant worker) from a digital labour platform, a person must not commence other deactivation proceedings in relation to the relevant worker and the digital labour platform unless:

(a) the application has been discontinued by the person who made it; or

(b) the proceedings in relation to the application have failed for want of jurisdiction.

(3) In this section:

other deactivation proceedings means proceedings (if any) specified in regulations made for the purposes of this definition.

734BB Limitation on applications for remedy for unfair termination — other proceedings in progress

(1) An application under Division 5 of Part 3A-3 (unfair deactivation or unfair termination of regulated workers) in relation to termination of a services contract must not be made if other termination proceedings have been commenced in relation to the services contract, unless the other termination proceedings:

(a) have been discontinued by the person who commenced them; or

(b) have failed for want of jurisdiction.

(2) A person must not commence other termination proceedings in relation to a services contract if an application under Division 5 of Part 3A-3 has been made in relation to termination of the services contract unless:

(a) the application has been discontinued by the person who made it; or

(b) the proceedings in relation to the application have failed for want of jurisdiction.

(3) In this section:

other termination proceedings means proceedings (if any) specified in regulations made for the purposes of this definition.

(178) Govt (35) [sheet ZC235]

Schedule 1, item 300, page 165 (lines 9 and 10), omit "and regulated workers and regulated businesses", substitute ", regulated workers and regulated businesses, and persons in a road transport contractual chain".

(179) Govt (36) [sheet ZC235]

Schedule 1, item 301, page 165 (line 12), after "3A", insert "or 3B".

(180) Govt (37) [sheet ZC235]

Schedule 1, item 302, page 165 (after line 18), after paragraph 738(bb), insert:

(bc) a road transport contractual chain order includes a term that provides a procedure for dealing with disputes; or

(181) Govt (38) [sheet ZC235]

Schedule 1, item 303, page 165 (lines 19 to 24), omit the item.

(182) Govt (39) [sheet ZC235]

Schedule 1, item 304, page 165 (lines 25 and 26), omit the item.

(183) Govt (40) [sheet ZC235]

Schedule 1, item 305, page 165 (lines 27 to 31), omit the item.

(184) JLN/Ind (Pocock) (1) [sheet 2369]

Schedule 1, Part 16, page 166 (after line 14), at the end of the Part, add:

Division 6 — Digital Labour Platform Consultative Committee

National Workplace Relations Consultative Council Act 2002

306A Before section 1

Insert:

Part 1 — Introduction

306B Section 3

Insert:

Committee means the Digital Labour Platform Consultative Committee.

digital labour platform has the meaning given by the Fair Work Act 2009.

Digital Labour Platform Consultative Committee means the committee established under Part 3.

digital labour platform operator has the meaning given by the Fair Work Act 2009.

digital platform work has the meaning given by the Fair Work Act 2009.

306C Before section 4

Insert:

Part 2 — Establishment of the National Workplace Relations Consultative Council

306D Subsections 10A(1) to (3)

Repeal the subsections, substitute:

(1) The Minister may, after consulting the members of the Council or the Digital Labour Platform Consultative Committee (as the case requires), invite a person, body or organisation to nominate a representative for the purposes of this section.

(2) A representative so invited may participate in one or more meetings of one or more of the following, in accordance with the invitation, but does not become a member of the Council, or of a committee or subcommittee:

(a) the Council;

(b) committees of the Council, including the Digital Labour Platform Consultative Committee;

(c) a subcommittee of the Digital Labour Platform Consultative Committee.

(3) If at any time the Minister terminates an invitation, the representative concerned ceases to be entitled to participate in meetings of the Council, its committees or any subcommittee of the Digital Labour Platform Consultative Committee.

306E Before section 13

Insert:

Part 3 — Establishment of the Digital Labour Platform Consultative Committee

12A Digital Labour Platform Consultative Committee

(1) There is established by this Part a committee by the name of the Digital Labour Platform Consultative Committee.

(2) A member of the Committee is not entitled to any remuneration or allowances.

(3) Subject to subsection (2), the Committee is taken to be a committee constituted for the purposes of section 12.

12B Purpose of Committee

(1) The purpose of the Committee is to provide, in the public interest, a regular and organised means by which representatives of:

(a) the Government of the Commonwealth; and

(b) digital labour platform operators; and

(c) workers performing digital platform work; and

(d) when the Minister considers it appropriate, other persons, bodies and organisations;

may consult together on workplace relations matters relating to digital platform work.

(2) It is the intention of this Act that:

(a) meetings of the Committee will be conducted on a non-political basis; and

(b) the Committee will not interfere with the proper performance of the functions of industrial tribunals; and

(c) subject to the rights of persons participating in meetings of the Committee to report to the persons, bodies and organisations that they represent and to the right of the Committee to make announcements that those persons agree are in the public interest, the views expressed at those meetings will be kept confidential.

(3) Subsection (1) does not limit the purposes of the Council under section 5.

12C Membership of Committee

(1) The Committee is to consist of the following members:

(a) the Minister, who is to be the Chair of the Committee;

(b) at least 6 members appointed by the Minister under subsection (3) who the Minister is satisfied represent digital labour platform operators;

(c) at least 6 members appointed by the Minister under subsection (3) who the Minister is satisfied represent workers performing digital platform work.

(2) Without limiting the sectors that may be represented for the purposes of paragraphs (1)(b) and (c), the Minister must be satisfied that the persons appointed under each of those paragraphs represent the following sectors:

(a) the care economy sector;

(b) the on demand delivery sector;

(c) the rideshare sector.

(3) The Minister may appoint a person for the purposes of paragraph (1)(b) or (c).

(4) Subject to this Act, a member (except the Minister) holds office for such period, not exceeding 2 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

12D Resignation of members

An appointed member may resign by writing signed by the member and delivered to the Minister.

12E Termination of appointment of members

If, in relation to a member appointed for the purposes of paragraph 12C(1)(b) or (c), the Minister ceases to be satisfied as required by the relevant paragraph, the Minister must terminate the appointment of that member.

12F Substitute members

(1) The Minister may nominate a person to attend a meeting of the Committee in the Minister's place, or in the place of an appointed member who is unable to be present at a meeting of the Committee.

(2) A person nominated under subsection (1) to attend a meeting of the Committee in the place of a member of the Committee has, and may exercise, at that meeting all the rights of that member.

12G Meetings of Committee

(1) During the first 24 months after this section commences, the Committee must meet:

(a) at least once each year during the period that begins on 1 January and ends on 30 June; and

(b) at least once each year during the period that begins on 1 July and ends on 31 December.

Note: A representative of a person, body or organisation may, under section 10A, be invited by the Minister to a meeting.

(2) After that 24-month period, the Committee must meet at least once during each further 12-month period.

(3) The Minister may, at any time, convene a meeting of the Committee and must do so whenever the holding of a meeting is necessary to comply with subsection (1) or (2).

(4) The Minister must convene a meeting of the Committee whenever requested to do so by a majority of the members of the Committee.

(5) The Minister must preside at all meetings of the Committee at which the Minister is present, and, in the Minister's absence from a meeting, the person nominated under subsection 12F(1) to attend that meeting in the place of the Minister must preside.

(6) Subject to this section, the procedure to be followed at a meeting of the Committee must be determined by the Committee.

12H Subcommittees

(1) The Committee may, at any time, cause to be constituted a subcommittee to consider, and report to the Committee on, any matter relevant to the purpose of the Committee referred to it by the Committee.

(2) A member of a subcommittee is not entitled to any remuneration or allowances.

Part 4 — Other matters

306F Application of amendments

The amendments of the National Workplace Relations Consultative Council Act 2002 made by this Division apply to:

(a) the period beginning on 1 January and ending on 30 June, or beginning on 1 July and ending on 31 December, during which this Division commences; and

(b) any later such period.

(185) Govt (41) [sheet ZC235]

Schedule 1, page 166 (after line 14), after Part 16, insert:

Part 16A — Consequential signpost definitions relating to road transport contractual chains

Fair Work Act 2009

306A Section 12

Insert:

deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(1).

deferral determination, in relation to a road transport contractual chain order: see subsection 536QA(1).

full deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).

full deferral determination, in relation to a road transport contractual chain order: see subsection 536QB(2).

full suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).

full suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).

in a road transport contractual chain: see section 15RA.

part deferral declaration, in relation to a road transport contractual chain order: see subsection 536PU(2).

part deferral determination, in relation to a road transport contractual chain order:see subsection 536QB(2).

part suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(2).

part suspension determination, in relation to a road transport contractual chain order: see subsection 536QG(2).

primary party: see subsection 15RA(2).

road transport contractual chain: see section 15RA.

road transport contractual chain guidelines: see section 536QP.

road transport contractual chain order: see section 536PD.

road transport employee-like worker: see section 15RB.

secondary party: see subsection 15RA(2).

suspension declaration, in relation to a road transport contractual chain order: see subsection 536PX(1).

suspension determination, in relation to a road transport contractual chain order: see subsection 536QF(1).

(186) Ind (Thorpe) (3) [sheet 2373]

Schedule 1, item 308, page 170 (lines 17 to 20), omit subclause 102(4) of Schedule 1.

(187) JLN/Ind (Pocock) (34) [sheet 2366]

Schedule 1, item 308, page 170 (before line 33), before subparagraph 102(6)(b)(i) of Schedule 1, insert:

(ia) been given a notice before commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B; or

(ib) been given a notice after commencement under subsection 66C(3) that the employer is not required to make an offer to the employee under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or

(ic) declined before commencement, under section 66D, an offer made by the employer under section 66B; or

(id) declined after commencement, under section 66D, an offer made by the employer under section 66B (as those sections continue to apply because of subclauses (6AA) and (6AB)); or

(188) JLN/Ind (Pocock) (35) [sheet 2366]

Schedule 1, item 308, page 171 (after line 4), after subclause 102(6) of Schedule 1, insert:

(6AA) Despite subclause (5), sections 66B and 66C as in force immediately before commencement continue to apply after commencement for a period of 6 months from commencement in relation to employment relationships entered into before commencement where the employer is not a small business employer at commencement.

(6AB) Despite subclause (5), sections 66D and 66E as in force immediately before commencement continue to apply after commencement in relation to:

(a) an offer made before commencement by an employer under section 66B for which, immediately before commencement, a response under section 66D or a notice under section 66E had not been given; or

(b) an offer made after commencement by an employer under section 66B, or a notice given after commencement under subsection 66C(3) that the employer has decided not to make an offer to the employee under section 66B (as those sections continue to apply because of subclause (6AA)).

(189) JLN/Ind (Pocock) (36) [sheet 2366]

Schedule 1, item 308, page 171 (line 9), after "small business employer", insert "at commencement".

(190) JLN/Ind (Pocock) (37) [sheet 2366]

Schedule 1, item 308, page 171 (line 11), after "small business employer", insert "at commencement".

(191) JLN/Ind (Pocock) (38) [sheet 2366]

Schedule 1, item 308, page 171 (line 23), omit "sections 66M and 739", substitute "sections 66M, 548 and 739".

(192) JLN/Ind (Pocock) (39) [sheet 2366]

Schedule 1, item 308, page 171 (after line 27), after paragraph 102(7)(a) of Schedule 1, insert:

(aa) disputes that arise after commencement relating to the operation of sections 66B to 66E (as those sections continue to apply because of subclauses (6AA) and (6AB)); and

(193) AG (3) [sheet 2361]

Schedule 1, item 308, page 175 (after line 2), after Division 5, insert:

Division 5A — Amendments made by Part 8 of Schedule 1 to the amending Act

111A Definitions

In this Division:

commencement means the commencement of Part 8 of Schedule 1 to the amending Act.

111B Application of section 149F of the amended Act

(1) Section 149F (right to disconnect term) of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.

(2) However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term.

111C FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before commencement; and

(b) is to be in operation on commencement.

(2) The FWC must, by the day before commencement, make a determination varying the modern award to include a right to disconnect term.

(3) A determination made under subclause (2) comes into operation on (and takes effect from) commencement.

(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.

111D Application of amendments to small business employers

The amendments made by Part 8 of Schedule 1 to the amending Act do not apply in relation to an employer that is a small business employer on the day of commencement, or an employee of the employer, for a period of 12 months beginning on that day.

(194) JLN/Ind (Pocock) (5) [sheet 2371 revised]

Schedule 1, item 308, page 176 (line 26), after "Schedule", insert "and sections 15AB to 15AD of the amended Act".

(195) JLN/Ind (Pocock) (6) [sheet 2371 revised]

Schedule 1, item 308, page 177 (line 21), after "Act", insert ", and, to avoid doubt, does not include a reference to an individual in respect of whom an opt out notice has been given and not revoked".

(196) Govt (47) [sheet ZC237]

Schedule 1, item 308, page 181 (line 27), omit "12 months", substitute "6 months".

(197) Govt (48) [sheet ZC237]

Schedule 1, item 308, page 182 (lines 3 and 4), omit "the commencement of this item", substitute "commencement".

(198) Govt (49) [sheet ZC237]

Schedule 1, item 308, page 182 (lines 11 and 12), omit "of this item".

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I move as an amendment to the motion moved by the Leader of the House:

That all words after "considered" be omitted with a view to substituting the following words—

"at the next sitting".

I'll take the opportunity to explain to members of the House why I am moving this motion. The process that the government and the minister have followed in relation to the so-called closing loopholes bill has been utterly appalling. It has been a complete travesty of democratic process. This has been going on for some months. When the minister introduced the original bill in September last year—a bill that was hundreds of pages long—the minister wanted debate on that bill to start the very next day. That was before the shadow minister had even been fully briefed on the contents of the bill. So the minister at that time was wanting less than 24 hours for all members of parliament—opposition and crossbench—to consider a bill that was hundreds of pages long and that, of course, contained an extensive range of provisions that would completely transform and disrupt the way that workplaces across Australia—small, medium and large businesses—operate, impose extraordinary costs and remarkable inefficiencies, and generally do precisely the opposite of what Australia needs at a time when we know that we have a very serious productivity problem in our economy. The one thing we can be certain of is that these bills are a huge backward step for productivity in the Australian economy.

At the time, in my remarks I argued that the government's desperate attempts to ram through these dramatic industrial relations changes would have deeply adverse consequences across the economy. It is clear that a very wide range of Australians support that view and are alarmed and deeply concerned at what the minister is doing. We saw more of this when the House had the opportunity to consider in detail the closing loopholes bill. The government crunched down the time available for debate. Only 20 minutes of debate were allowed for each set of amendments.

You might think that that is all very bad—and it is very bad, and it is entirely at odds with what the minister at the table spent nine years fulminating about. I don't encourage people to read what he said, because that would be time you'd never recover. But let me assure you that he repeatedly told this House that it was an outrage—and he was right—that there was not a proper opportunity for this House to do its work, the work that members in this House are elected to do, the work that members in this House are sent here by the communities across Australia to do, which is to scrutinise legislation and form a considered view as to whether they ought to support, oppose or propose amendments to legislation.

What is it that has happened this morning, since this legislation was rammed through the Senate with extensive use of guillotine provisions? The amendments that have been received by the House—92 pages—have been available for less than two hours. I was advised over the weekend by the House of Representatives Table Office that as at the close of business on Friday they had not received the message from the Senate. So, members of this House are being asked to consider a wide range of amendments made in the Senate, many of which are highly detrimental to the objective of a more productive economy—an economy in which more people can be employed, an economy in which we are fighting and eliminating the scourge of inflation. Yet many of these amendments, which are responding to the agenda of the unions, who are the paymasters of Labor politicians, are going in precisely the opposite direction. And there has been very little time to study their impact, but I am sure that even in the limited time there are a number of provisions that coalition members and indeed crossbench members have identified that cause them concern and alarm.

For example, we know that, in the rush to get this bill through, the minister agreed to a set of changes proposed by the Greens party to establish a so-called right to disconnect. This is a very profound change to existing workplace arrangements. Already we have seen, quite rightly, businesses in Western Australia—which for much of the year is on a time zone that is three hours different to that of the rest of the country—asking how they are going to maintain normal communications with employees on the east coast when their west coast office is three hours behind the time zone on the east coast. That is one of many very good questions of detail that it's absolutely evident have not been considered for a second because of the rush to get this bill through and to jump to the tune of the union paymasters.

When you look at the criteria set out in clause 333M(3), as it presently stands, the factors to be taken into account as to whether the right to disconnect has been breached, there is no mention of the criticality to the business of the issue which is triggering an employer to attempt to speak to an employee. There was no mention of the importance to customers. This might well be an issue that is existential for a customer of a particular business. Yet this change would mean that employees who chose not to engage, leading to profound damage being done to the interests of a customer, would be under the provisions that have been rammed through the Senate, and employers could then find themselves unable to take any action to deal with the urgent issues that are facing them.

Let's just think about what we've seen in Australia in the last couple of years in terms of cyberattacks: Latitude Financial, Medibank Private, Optus and many others. How will this provision work if a cyberattack occurs during a time that is outside employees' normal working hours? Guess what: the Russian criminal gangs who do cyberattacks don't really care very much about working hours—and the minister giggles at this. Let me predict that, the next time there is such a cyberattack and customers are disadvantaged and inconvenienced and have their personal details attacked, there'll be no shortage of Labor MPs and Greens MPs saying, 'What was this company doing?'

Here they have recklessly introduced a change to the legislation without any consideration, without any committee process and without any exercise in consulting to understand what the implications of it would be. That is repeated across issue after issue after issue in this legislation. What we get from the other side is that they dismiss it. They laugh at it. Why do they do that? For a very simple reason: because they're not here to serve the interests of all Australians. They're not here to serve the interests of a productive, efficient Australian economy and in turn generate the prosperity on which our roads, our schools and our hospitals depend. What they are here to do is to jump to the tune of the union paymasters. That is exactly what this bill represents. One of the reasons the minister is rushing this through, in a piece of poor process which is absolutely scandalous in its implications for the work of the parliament in holding up legislation to scrutiny, is that he wants to minimise answering these awkward questions. But these are not only awkward questions but enormously important questions.

To propose that it be made an order of business for the next day—this is not a dramatic amount of time that we're seeking, but what we are seeking to do is to give the parliament and parliamentarians the opportunity to scrutinise, as they ought, changes which have been made which have been rushed through with a very poor process. It is, frankly, shocking that the government would not contemplate agreeing with it.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Kevin Hogan (Page, National Party, Shadow Minister for Trade and Tourism) Share this | Link to this | Hansard source

I second the amendment moved by the Manager of Opposition Business. Before I go to the motion and what we are debating here today, I want to raise the issue that this government, when elected, talked a lot on the issue of transparency and integrity—two important things—but what we've seen from this new government from the day it came into power is this guillotining. This is a gag. Make no doubt about what this is: this is guillotining and gagging debate on this very serious issue. This is what we're talking about.

For a government that said they ran on integrity and transparency, there is a great irony about that. This isn't the first bill.

Government Members:

Government members interjecting—

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Order! Government members who are out of their seats, please refrain from interjecting.

Kevin Hogan (Page, National Party, Shadow Minister for Trade and Tourism) Share this | Link to this | Hansard source

 On a lot of very important bills that have gone through this chamber, debate has effectively been gagged and guillotined by this government. I note that it has happened to some of the standing orders too. It is quite ironic that one of the first things this government did when coming in was to change the standing orders to basically take away some of the democratic practices in this chamber.

I do note that we have some crossbenchers here today. I can only assume that the crossbenchers in here today will be standing to support the amendments moved by the Manager of Opposition Business, because the crossbenchers especially ran on transparency and integrity. I'm sure they're going to be supporting the amendments moved by the Manager of Opposition Business, because what we're trying to do with these amendments is to bring more integrity and more transparency into the process on what we're talking about today. I don't think the Greens member will be supporting the integrity and transparency on the amendment moved by the Manager of Opposition Business this morning, because he's been involved in the secret negotiations and he will want to wave this through as well.

Let's go to the specifics of what we're talking about here today. As the Manager of Opposition Business said, this is quite involved and serious legislation. When this came through the House of Representatives the first time around, as the Manager of Opposition Business said, we were gagged and it was guillotined. It came in with 270 pages of legislation and was introduced to parliament the very next day. That is unusual for such serious legislation; there's often more time to look at it. Then, as the Manager of Opposition Business says, there were only 20 minutes of debate for each set of amendments as it went through this House. Again, this was all about gagging and a guillotine, because the government just wanted to rush this through. What have we seen because of this? We always said this would cause issues and problems. They have done the same process in the Senate. They guillotined debate, gagged debate there. So what happened? We always go, 'When you do that, problems happen,' and guess what happened? Something went through they didn't want to go through. What went through was jail penalties for bosses if they breach some of the Fair Work Commission orders. I am glad the government—and I agree with them—are looking to reverse that because that was an outrageous proposal put forward by the Greens, so I do commend the government that they are looking to reverse something that they passed through that should never have happened. But it happened because of the guillotining and the gagging and by not letting parliamentary process roll out over the time that it should. That is exactly why we are moving these amendments today.

Again, given we are talking about industrial relations and legislation, as the Manager of Opposition Business said earlier there is a reason that everyone on that side will sit very quietly on this, because this is about every single person over there's paymaster. They all have their own union paymaster. This whole legislation here is about supporting legislation supporting union power. This is all about those opposite paying back who they need to pay.

To go back, we warned those opposite. When this legislation was first introduced in the House of Representatives, we said to the Leader of the House then, 'What will happen when you gag, when you guillotine, when you rush things through the chamber and due process doesn't happen is mistakes will be made. Doing this again today means that will happen.' In the Senate, with the gagging and with the guillotine that happened, a mistake was made. We say to the government, 'You were elected on the issue of integrity. You were elected on the issue of transparency.' I have no doubt, as I said, that the crossbenchers will be supporting us on this because this has nothing to do with integrity of process. This has nothing to do with transparency. This is about rushing a bill through the House. A mistake was made in the Senate because of this. I commend the amendments moved by the Manager of Opposition Business.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Hearing some of those arguments, I wonder whether someone has had a Russian cyberattack to the head. There were some extraordinary, extraordinary arguments. Let's not forget, all we are doing right now is saying we got a message from the Senate and we will consider it straightaway. Now, in the last 20 years that I have been here, that is basically what this House does when we get a message from the Senate. To describe that as a gag basically says every message from the Senate in at least the last 20 years, possibly since Federation, has been gagged. These are really out-there arguments.

The Manager of Opposition Business claimed as well that he has only had two hours to consider these amendments. They were all on the floor of the Senate last Thursday. Over the whole weekend, did he and Senator Cash decide to disconnect? Did they decide that what was said in the Senate would be kept a secret, that he wasn't to be told that it was secret Senate business and that no-one would tell the Manager of Opposition Business what amendments had been carried there?

The message that has been received by the House is the summation of everything that publicly happened in the Senate—no more, no less. If that was kept secret from the Manager of Opposition Business, I don't know how they communicate with each other. Maybe they will send more messages to each other on the ABC at 8 pm tonight. Maybe that will be the opportunity to communicate. But to claim that they have only just had two hours to scrutinise absolutely defies belief.

When this bill was introduced, I said there were three things that happen when people don't want to engage in the actual argument: they complain about the consultation, they talk about the bill, claiming it's something that it's not, and they ask for a delay. The whole way through, we had all three. In the speeches that we just heard, we also had all three. Asking for a delay, he said that we were wanting to debate it the next day. That was because they had declared their position on it before I introduced it. It's just like the tax cuts. They announced they were opposed to them before they had seen them. It's the exact same scenario. We made sure it had had time to go to their party room. What did they decide in their party room? Surprise, surprise, they were opposed to any legislation that would help with job security or getting wages moving—completely as we knew.

It was listed for debate. What did they do then? First of all, they voted for a six-week delay. The next day they came back in and decided a six-week delay wasn't enough and they wanted to delay it from September to February. Then, in the Senate, they shifted the Senate inquiry from November to February. A few weeks later they voted in the Senate. Instead of it being that it had to be by 1 February, they were then voting for no sooner than 1 February. We actually had the longest Senate inquiry we have ever had into an industrial relations bill on this legislation, and yet they want to complain about consultation. They want to claim that this is somehow a bill that has an impact on Russian cyberattacks. We all have to avoid conflicts of interest. I'm not sure why the Manager of Opposition Business keeps wanting to talk about the impact on Optus. I would weigh that one up carefully as an example that you constantly reach for.

You are asking for a further delay. I know there will be a debate when we deal with the amendments themselves. From the crossbench, there will be different issues that have come up in the Senate that crossbenchers will have strong views on, and there'll be a debate about the policy. But to have a debate now about whether we can deal with this issue at all—people have been waiting too long. Casuals have been waiting too long already to get the right to be able to get permanent employment if that's what they want. Gig workers have been waiting a decade to be able to get a minimum standard. Road transport industry workers have been advocating for more than 20 years to be able to get minimum standards. Workers, as they've gradually gone to having their own mobile phones over the last decades, have now waited too long just to know they don't have to constantly be on call. People have been waiting years and years for this moment. It's time for people to get those rights and to get those rights today.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The immediate question is that the amendment be agreed to, and I call the honourable member for Nicholls.

Sam Birrell (Nicholls, National Party) Share this | Link to this | Hansard source

Thank you, Deputy Speaker.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Didn't I just speak in reply?

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

I call the Manager of Opposition Business.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

This is a debate not otherwise provided for. We're dealing with an important procedural question. There are other colleagues who wish to speak, and they should be given that right.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

We're just seeking clarification. The Clerk has told me that the member for Nicholls can have the call.

Sam Birrell (Nicholls, National Party) Share this | Link to this | Hansard source

I'll allow the member for Melbourne to have the call prior to me, if he's very keen to do that, in the spirit of the House.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

At some point today we are, I hope, going to have a substantive debate about whether the amendments get accepted or not. I just want to raise one point about something the Manager of Opposition Business said. The Manager of Opposition Business, a senior Liberal politician, said, 'We can't debate this now because we've only had the amendments for two hours.' Well, the amendments were made public and were out in the Senate last Thursday.

Perhaps the member for Bradfield exercised his own right to disconnect over the weekend and decided not to read the amendments that were circulating. I know many of those opposite went and spoke about them publicly and gave media interviews about them, but these amendments have been available for hours. It is classic Liberals that they don't want to work over the weekend but they want everyone else to be available, to be on call 24/7! If he paid any attention, had perhaps not waited until this morning to read the amendment for the first time but had looked at it when it was in the Senate over the weekend, he'd have seen that there is the word 'reasonable' in there.

It's to be expected that politicians who turn up to work on a Monday might have done some homework over the weekend about the motion they're going to come in here and argue about—including perhaps reading the amendments that they now stand up and say can't be opposed. Classic Liberals. Not wanting to work over the weekend themselves, despite six-figure salaries, and saying we need extra time to do it, but demanding that everyone else in this country be on call 24/7.

The Greens have won workers the right to disconnect; the Liberals want to delay it and then take it away. Too many people have been putting up with an interruption to their family lives and their home lives for far too long. This is a practical, commonsense right that will give people the right to switch off when they clock off. And all of the matters that are being raised by the Manager of Opposition Business, if he'd bothered to actually read the amendment over the weekend rather than waiting until this morning, he would have found out those kinds of things were all addressed. They have all been addressed and are all part of the amendment.

I hope that we're able to have this debate, and I'd urge the Manager of Opposition Business to seriously reflect on whether it's a good idea to come in here on a massive politician's salary and say: 'Sorry, I didn't have a chance to read the amendments over the weekend. I want a bit of extra time.' Well, if you can't be prepared to do it yourself—if you're exercising your own right to disconnect, Member for Bradfield, then good on you, but don't deny it to the millions of Australian workers who are stressed, who want to be able to put their kids to bed instead of having to answer emails, who want to be able to watch their kids' footy games instead of responding to texts, who want to be able to enjoy time with their mates over the weekend instead of being asked by their employer to go and convert a Word document to PDF—all of those things are rights that everyone in this country enjoys, just as the member for Bradfield enjoyed his right to disconnect over the weekend, and this parliament should get on with legislating it and approving these amendments here.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Mr Deputy Speaker, I didn't have the standing order in front of me before. When I queried that the debate could continue, I was referring to standing order 71, which reads as follows:

Reply closes debate

When the Member who moved the original motion replies—

in this case it was me, and I had checked that no-one else was standing—

the debate shall close except during consideration in detail of a bill—

which this is not—

or consideration of amendments to a bill—

which would be the next motion, not this one. I simply ask that standing order 71 be enforced.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Bradfield be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question now is that the amendments be considered immediately.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That the amendments be agreed to.

This legislation is a critical part of the government's agenda to fight to get wages moving. While those opposite want people to work longer for less, we want people to earn more and keep more of what they earn. People have been waiting too long for these provisions, for rights for casuals, for minimum standards in the gig economy, for minimum standards in road transport and to be able to have some rights to your weekends and your time off.

These are basic rights that are contained in this bill, which is why it's no surprise that those opposite are fighting tooth and nail to prevent them. They fought tooth and nail against us when we said we would argue for an improvement in the minimum wage. They fought tooth and nail against the secure jobs and better pay bill. They did it with closing loopholes No. 1 and they are doing it again now with closing loopholes No.2. We are simply talking about basic rights—the concept that a casual, who is already working completely consistent hours, should have a right to say, 'I would like some job security.' Why on earth is that controversial? Try getting a mortgage or try getting a rental property if you've only got a casual job. It's about giving people some security in their lives. Our entire workplace relations system in Australia is based on the concept of having minimum standards. Yet, if you are a gig worker when you first get asked, 'Are you are an employee?' and the answer is, 'No,' all of those rights fall off a cliff. What we're doing today is turning that cliff into a ramp. The parliament is deciding today that Australia should not be a nation where you need to rely on tips to make ends meet.

The road transport industry has been fighting for 20 years for a workable system of minimum standards, like payment times to make sure that people aren't waiting endlessly for the money they are owed to be paid while all the bills for the money they owe are coming in one after another after another. This is thanks to the work of both industry and the Transport Workers Union, working together. They have come up with a project, a program, a plan to be able to do this through the Fair Work Commission that will deliver whether you are an employer, an employee, an owner-driver or just a motorist who wants to make sure that those driving heavy vehicles aren't under unreasonable pressure.

So today we should act. A further bill will be introduced on Thursday by me, because of what happened in the Senate last week, one of the most extraordinary things that I've ever seen. The right to disconnect is an important right. Where flexibility already exists in the workplace, where workers and employers already have cooperative arrangements, this legislation will make no difference to those arrangements at all. But there are some bad actors, some employers, who do take advantage and constantly reach into people's personal time and stop them from ever being able to get a weekend or reasonable time off. Those workers will finally have a right to ignore incessant unreasonable contact when it's being made.

It's not a ban on the employer reaching out, but it does mean that if you're on your weekend you don't have to constantly have your phone with you. If you want to have your phone off at night, that's not an unreasonable thing to do. If you've got a work email account, you can wait until your work hours before you check back in. Of course there'll be some people for whom regular checking in or keeping in contact is part of their award or agreement, where they're paid an allowance or paid a salary and that's part of the deal, and nothing changes in those circumstances. Effectively to argue against this is to argue that it should be okay for people to be working without being paid, because that's the alternative. And the position of those opposite, the one thing in this bill that they thought they would immediately declare they would repeal, was the thing that deals with people having to work for free. That was the bit they thought was outrageous. It just says how one-sided their view is to what the laws at the workplace should be.

Part of the way that the right to disconnect has been introduced is the same way that we deal with a series of other rights, including some anti-bullying provisions that are in the Fair Work Act. (Time expired)

Milton Dick (Speaker) Share this | Link to this | Hansard source

The minister in continuation.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

That means that there is a pathway open to potential criminal penalties many months down the track, but I haven't found anyone who actually supports the possibility of that. And those opposite—you hear the Manager of Opposition Business, 'Come in spinner', you sort of know he's going to do it. There's one reason that that issue hasn't already been fixed. It is because the government went into the Senate and said, 'This issue can be corrected and we should correct it immediately so there's no doubt for business.' Guess why it wasn't corrected? Did the Greens party block its being introduced? No. Did Senator Lambie block its being introduced? No. Did any of the crossbench, even One Nation, say, 'No, no, no, you shouldn't be allowed to fix that'? No. It was Senator Cash. Senator Cash, on behalf of the Liberal and National parties, said, 'How dare you try to make sure that employers are not exposed to criminal penalties?' Now, I know they're addicted to saying no to everything, but when they get to the point where they are so determined to say no that, when no other member of parliament thinks there should be criminal penalties for employers in this area, they will block that just for the hell of it—just to say no, just to feel good about themselves—that is one of the most pathetic examples of self-indulgence you will ever see in this place.

The employers of Australia deserve better than for that to have ever been a fear campaign, and it was only the Liberal and National parties that stood in the way of it. It will be fixed in legislation that I'll introduced later this week. The provisions themselves don't start for six months, so it'll all be fixed in time. But the obsession of those opposite is in saying no to fixing a simple issue for employers, in the same way that they say no to job security for casuals, to minimum standards for gig workers, to minimum standards for the road transport industry and, simply, to a standard where workers can say, 'If it gets completely out of hand, I've got the right to not monitor my phone 24/7.' If you ask most Australians about the concept of whether there should be minimum standards, whether some casuals should be able to convert if they want to or whether you should not have to be on call 24/7, they will say they are all reasonable things. But reasonable doesn't cut it for the Liberal and National parties. They are determined to undermine job security. They are determined to undermine minimum rates of pay.

I say to the House: before we get to 1.30 today, let's get this done. Let's close the loopholes.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

Amazingly, the Albanese Labor government has managed to take a terrible bill and make it worse, with the amendments that passed the Senate last week and that the House is now determining whether it should support. This is terrible legislation that businesses and employers across Australians are saying will create extreme uncertainty for businesses, particularly small businesses, that employ casual workers. We have a cost-of-living crisis, we have high inflation, we have businesses struggling with staff shortages and rapidly increasing power costs, and Labor is making a bad situation worse.

None of the measures in this bill are designed to improve productivity, generate more jobs, drive growth or drive investment, all of which are the ingredients of a successful economy. On the contrary, these changes are part of the most radical shake-up of Australia's industrial relations system in decades. We're only starting now to see some of the consequences of the multi-employer bargaining changes that were rammed through by this government in late 2022. Those consequences will increase as the months and years roll on. It's clear from Labor's industrial relations agenda that they want to hand over every workplace, including small and family businesses, to the unions.

The small and family business enterprise business community is already under significant pressure from rapidly rising costs and will be hit hard by these new laws. The legislation will also impact the prospects for the very employees that it purports to protect. Small and medium businesses employ millions of Australians, and the government is burdening them with extra costs—costs that will result in more costs going to customers or the loss of jobs or both.

I want to speak in particular about the intractable bargaining provisions. They were the subject of a dirty deal with the Greens which actually undermines the concepts that underpin bargaining. This is one of the worst elements of this antibusiness, antigrowth legislation. The arbitration of bargaining deadlocks by the Fair Work Commission cannot reduce workers' existing conditions on a clause-by-clause basis. This reverses decades of good-faith bargaining where a package of better terms and conditions could be put on the table and traded off against operational and productivity improvements. It will simply incentivise unions to drag out a bargaining dispute for as long as possible and force matters to be arbitrated. This is very bad news for the nation and very bad news for our prospects for inflation.

When it comes to casual employment, the definition of 'casual employee' is three pages long, with 15 different factors in the new legal test. To employ a casual, a business has to go through a complicated series of tests just to work out if they're doing the right thing by law. Until the Fair Work Commission makes the determination, employers will face substantial risk when employing casuals. The irony is that this may well make hiring casual employees less attractive, impacting job creation and also adversely impacting the many Australians who embrace and prefer the flexibility of a casual job. It will be an enormously complex process with somewhere between 15 and 25 steps depending upon how you read this legislation and which lawyer you listen to. At the very least, what this will mean is many employers needing to get much more expensive legal advice.

We've also got the provisions dealing with employee-like forms of work. We know that Labor does not like self-employed people, and these provisions are simply an attack on Australians who want to be their own bosses. It's clear to everybody who wants to make that choice that Labor is refusing to support their choice.

We know, when it comes to the issue of the provisions that were rushed through in relation to the so-called right to disconnect, that employees already have legal protections against working unreasonable additional hours outside work. The extraordinary mishandling of this—the extraordinarily rushed nature of this—means that Labor rushed through legislation and voted for legislation which would impose jail penalties on employers who breach Fair Work Commission orders not to contact their employees outside of work hours—just one example of what a chaotic, disordered process this has been. In Labor's desperation to get this through, dancing to the tune of their union paymasters, they did a dodgy deal with the Greens over the right-to-disconnect laws.

Of course, this bill also dramatically increases the powers of union officials, including the right to enter a workplace without notice, despite only eight per cent of private-sector employees being union members. Australians have made their choice. This bill is a terrible bill. The amendments are terrible. The coalition opposes them.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I rise to support these amendments. Can I say we've just got a pretty good new election advertisement from the Liberals out of the last speech: the Liberals want to change the law so that you can lose wages and conditions and have them go backwards and you have to be available 24/7 to answer your boss's calls even if you're not getting paid for it. I notice that the Leader of the Opposition has now left the chamber. Perhaps he's had a bit of a rethink and decided that it might not be such a terrific idea to say to every worker in this country, 'Every time the boss texts you, you have to respond to it even if it's outside your working hours and you're not available.'

What we now know very clearly is that the Greens won the workers the right to disconnect, which means that, when you clock off, you can switch off. This is critical because so many people in this country have had their personal and family time interrupted by after-hours contact that could have waited until the next day at work. It means people can't watch their kids play footy or that they can't put the kids to bed because they're answering texts or emails instead. We now know that the Liberals don't want you to be able to put your kids to bed in peace; you should be answering emails instead. The Liberals don't want you to be able to enjoy time with mates over the weekend; you have to answer every text message that comes through from your employer. The Liberals want you bound electronically to your boss 24/7 even if you're not getting paid for it.

There has been a big change in technology over the years, and we now all have in our pockets minicomputers that allow us to be contacted pretty much wherever we are and whatever's happening, but the law just hasn't kept up. In part because of that, workers in this country work, on average, about seven weeks of unpaid overtime a year. That's how much average people are giving. The Greens have a simple proposition: if you're not getting paid for it and it's not reasonable then you shouldn't have to be available outside of work hours. It's a pretty reasonable proposition that I think most people in the country would agree with, because time outside of work is critical for recharging and spending time with your family and friends, and work can wait until the next day when you're back at work. Of course there might be instances where there's an emergency or immediate contact is needed, and this legislation that we've put through the parliament envisages that and allows for that. This is always the way: every time workers get a new right, the Liberals come in here and threaten people and then threaten to take it away.

I want to place and record my thanks to Senator Barbara Pocock, who has pushed for some time for the right to disconnect. Senator Barbara Pocock chaired and led the country's first ever national Senate inquiry into work and care, which looked at how we could update our laws to recognise that people outside of work hours often have caring responsibilities and family responsibilities and update our laws protect that time, because protecting that time is important. Work has bled far too much into people's time outside of work, and we need to update our laws to give people protection. Senator Barbara Pocock pushed for greater protection for workers and carers, and she moved this amendment on the right to disconnect, on behalf of the Greens, in the Senate.

I want to thank the government for their support, and I want to thank the minister, and the minister's staff as well, for working constructively on this. The provisions that ultimately got through strike a pretty good balance. We introduced legislation back in March. We perhaps might have done it a bit differently then, but I think the legislation has been improved through discussions, including discussions with other crossbenchers. I want to place on record my thanks for the constructive way in which the minister, the minister's staff and the crossbench approached these negotiations.

We now have a situation where people know that, if they find themselves in front of the commission, they can't have their conditions cut. They know that they can ignore a call that comes after hours if it can wait until the next day. These are rights that people need, and that's why these amendments should be supported. I hope the opposition reconsiders between now and the next election, because, I tell you what, people want the right to switch off when they clock off. It is incredibly popular because it is necessary, and the Greens are proud to have secured it.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (3) and (8) to Senate amendments (1), (2) and (52), circulated in my name, together:

(1) Senate amendment (1) (proposed new table items 2, 6A, 17 and 21 in subclause 2(1) of the Bill), omit the table items.

(2) Senate amendment (2) (proposed new Divisions 2 and 5 of Part 16 of the Fair Work Act 2009), omit the Divisions.

(3) Senate amendment (2) (proposed new Part 17 of the Fair Work Act 2009), omit the Part.

(8) Senate amendment (52), omit the amendment.

I will explain to the House what these amendments do. Their combined impact, if the amendments are passed, will be to remove a series of objectionable provisions in the bill, particularly the bill as amended by the Senate. The first effect would be to remove the lengthy, multipage, 15-plus factor provisions dealing with casual employment, which have done a remarkable job of casting darkness and confusion where before there was light and clarity after several High Court decisions that made the law very clear. The opposition's amendments, if passed, would allow the certainty which the High Court has established to continue to prevail.

They would remove the intractable bargaining provisions, which are another set of provisions which essentially wholly undermine the operation of enterprise bargaining, and for that reason the opposition believes those provisions should be removed.

They would remove the union demerger provisions. This is very interesting. The CFMEU comprises a roll-up of several individual unions that came together, and it turns out that at least one of those formerly independent unions that have joined up with the CFMEU have found that they have some rather unsavoury bedfellows. They find themselves somewhat uncomfortable at being aligned with an organisation that regard having been convicted of criminal charges to be a badge of honour for their officials. They are also great believers in the use of the baseball bat as a tool to encourage negotiation. The simple fact is that the coalition, when in government, introduced provisions which stood in the law and which were supported.

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

Order! The Leader of the House?

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Just to clarify, amendments (9) to (12) haven't been moved.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

The advice I've received is that those need to be moved after the House has voted on the overall package of amendments. If the Clerk has given me different advice, then I'll move them now, but that's the advice I've received.

Let me return to the topic of the CFMMEU and the importance of allowing demerges. We think it's a perfectly sensible provision. It's for people who have voluntarily come together in an association—in this case in a union—and decided, on reflection, that they have shacked up with a rather unsavoury mob who have a list of criminal convictions longer than your arm and who are great believers in the use of the baseball bat as a tool to encourage negotiations, among the many other features of the CFMMEU. We think that, if a particular division of the CFMMEU want to be released from that straightjacket, they should be. That's a perfectly sensible proposition, and that, indeed, is what this amendment would do if it were to be passed. That is a short summary for the benefit of the House of amendments (1), (3) and (8), circulated in my name.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that amendments (1), (3) and (8), moved by the honourable member for Bradfield, be agreed to.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That the question be now put.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the question be now put.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the Senate amendments be agreed to.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I ask leave to move amendments (4) and (5) and (9) to (12), circulated in my name, together.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Mr Speaker, it's just been carried. I don't understand what he's asking leave for. If he moves those now, they have no impact.

Milton Dick (Speaker) Share this | Link to this | Hansard source

We've been down this path before. The manager has the call.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

These amendments are being moved under standing order 160, which authorises amendments to be moved in the House after amendments have been made where the further amendments are relevant to or consequent on the Senate amendments or requests for amendments. Members would remember that the Leader of the House gave entirely incorrect advice to the House on this issue when another iteration of this bill—the bit that was separated off from this bill—was under debate in the House at around 10 pm, if memory serves, on the Thursday of the last sitting week.

The simple fact is that under standing order 160 the House is indeed entitled and empowered to move amendments to bills where those amendments are relevant to or consequent on the Senate amendments. It's uncontentious that the Senate amendments have now been agreed to by the House, but what standing order 160 authorises is for amendments to be moved that are relevant to or consequent on the Senate amendments. It is on that basis that I ask leave to move amendments (4) and (5) and (9) to (12), circulated in my name, together.

Milton Dick (Speaker) Share this | Link to this | Hansard source

Just so we're clear, this is standing order 160. As a result of the bill that has just come through the House, you are now moving changes, not to the original bill but as a result of the bill coming through.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

To respond: first of all, leave is not granted. Second, with respect to standing order 160, that refers to the moment that we had after we carried the first resolution, which was that we deal with it immediately. We dealt with that. We then had the resolution. The resolution was an amendment to how the House would deal with it. Once you decide to consider the amendments immediately, what's then in front of the House is standing order 160. The House has decided how it wants to deal with that.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The House has resolved that the amendments from the Senate have been dealt with. These are consequential amendments as a result of that decision. Leave is not granted.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I move:

That so much of the standing and sessional orders be suspended as would prevent the Manager of Opposition Business from moving amendments (4) to (5) and (9) to (12), circulated in his name, together.

The reason I do that is that, extraordinarily, at odds with normal procedure in this place and the normal courtesies and dignities extended by parliamentarians on both sides of this House, the Leader of the House has quite remarkably chosen to deny leave for what is an entirely routine process. That is the process under which, pursuant to standing order 160, a member of this House moves amendments which are relevant to or consequent on Senate amendments.

The matters that my amendments deal with are absolutely relevant to or consequent on the Senate amendments. They deal with matters such as casual employment and the appalling three-page, 15-factor definition which will create extraordinary difficulty, complexity, cost and uncertainty for employers of all sizes, from the smallest to the biggest. This is nothing less than a dreadful productivity deadweight on this nation that is in the interest of absolutely no Australian, and that is why it is important that standing and sessional orders be suspended to the extent necessary to allow this amendment to be moved.

Similarly, there is the amendment in relation to intractable bargaining: a remarkable provision that has been objected to by no less than the Labor Treasurer of Victoria. Tim Pallas is very sound on this issue—and I make that caveat: 'on this issue'. He makes the point that this will create unbelievable difficulties for state governments as they are in the course of dealing with employment matters with their very large numbers of employees: police, teachers, nurses and many others.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.